MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            16 February 2000  
	DOCKET NUMBER:   AR1999029812

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Ms. McKim-Spilker		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Ms. Meta Waller		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                            records
	Exhibit B - Military Personnel Records (including
	                 advisory opinion, if any)

APPLICANT REQUESTS: That his general, under honorable conditions discharge (GD) be upgraded to an honorable discharge (HD).

APPLICANT STATES:  In effect, that he was not provided with adequate medical treatment for the problems he was having; that personal and financial problems impaired his ability to service; that he was young and immature and became involved with drugs and alcohol; and, that an upgrade would help him towards becoming a productive citizen upon his release from prison.

EVIDENCE OF RECORD:  The applicant's military records show:

On 30 November 1970 he enlisted in the Regular Army for a period of 2 years.  He successfully completed basic combat training and advanced individual training (AIT) at Fort Polk, Louisiana.  He was awarded military occupational specialty (MOS) 94B (Food Service Specialist).  Thereafter he was reassigned to a permanent unit in Germany. 

The applicant’s record documents that the highest permanent rank he held on active duty was specialist/E-4 and the record contains no documented acts of valor, achievement, or service warranting special recognition.

On 13 April 1972 he accepted nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ, for violation of Article 86.  His punishment imposed consisted of reduction to private first class/E-3, forfeiture of $40, and 14 days restriction.

On 10 May 1972 he was apprehended by civilian authorities on three charges:  rape, carrying an illegal weapon, and possession of marijuana.  He was released on $1200 bond to await trial.

On 21 August 1972 a warrant was issued by Bell County Courthouse charging the applicant with aggravated assault.  This second charge breached the bail bond contract and the applicant was confined to the Bell County Jail to await trial.

On 11 October 1972 the applicant pled guilty in civilian court to forcible rape and possession of marijuana.  He was sentenced to the Huntsville Penitentiary for not less than 5 or more than 30 years for the rape conviction and 2 years for possession of marijuana.

On 14 November 1974 a board of officers recommended the applicant for discharge under the provisions of AR 635-206 due to a civilian conviction with a general, under honorable conditions discharge.

On 27 November 1974 the applicant’s discharge was directed under the provisions of AR 635-206.  On 9 December 1974 the applicant was discharged 

with a General Discharge Certificate.  He was credited with 1 year, 8 months, and 12 days active military service, and 850 days lost time. 

Army Regulation 635-206, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel who had committed an act or acts of miscondut (i.e., fraudulent entry, conviction by civil authorities, AWOL, and desertion).  A UD was normally considered appropriate.

There is no evidence that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15 year statute of limitations.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The record does not support the applicant’s contentions, and no evidence has been submitted by the applicant to support his contentions that his misconduct was mitigated by personal/financial problems, by youth and immaturity, or by a medical condition.  

2.  The record does support his contention that he was involved with illegal drugs in view of his conviction for possession of marijuana for which he was sentenced to 2 years in a state penitentiary.

3.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  He was discharged under the provisions of AR 635-206 for his conviction by civilian authorities for rape and possession of marijuana.  A UD was normally considered appropriate.  In the instant case, the applicant received a GD.  

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant failed to submit evidence that would satisfy the aforementioned requirement.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__aao___  __clg___  __mw____  DENY APPLICATION

Karl F. Schneider
Director, Army Review Boards Agency

INDEX

CASE ID	AR1999029812	
SUFFIX		
RECON		
DATE BOARDED	20000216	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	19741209	
DISCHARGE AUTHORITY	AR 635-206	
DISCHARGE REASON	6100	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1. 9321		
2. 9309		
3. 9311		
4. 9301		
5. 9317		
6.