MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            25 July 2000
	DOCKET NUMBER:   AR1999031963

	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.

	Mr. Carl W. S. Chun		Director	
	Mr. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Mr. Ted S. Kanamine		Chairperson	
	Mr. Stanley Kelley		Member	
	Mr. John H. Kern		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:  In effect, that his undesirable discharge be upgraded to an honorable discharge. 

APPLICANT STATES:  In effect, that clemency is warranted in his case because it is an injustice for him to continue to suffer the adverse consequences of a bad discharge.  He provides the enclosed statement which contains an extensive list of factors he contends impaired his ability to serve and provide mitigation in his case. 

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

On 18 March 1969, the applicant was inducted into the Army of the United States for 2 years at the age of 19 years and 11 months.  He completed basic training at Fort Ord, California and remained there to attend advanced individual training (AIT) for training in military occupational specialty (MOS) 11C (Infantry Indirect Fire Crewman).  

The applicant’s Department of the Army (DA) Form 20 (Enlisted Qualification Record) shows that he was never advanced beyond the rank and pay grade of private/E-1 while on active duty.  In addition, the record shows that he never completed AIT and he never was awarded a MOS.  Further, there are no acts of valor, significant achievement, or service warranting special recognition performed by the applicant during his tenure on active duty recorded in his service record.  However, the record does contain evidence of an extensive disciplinary history, which included his conviction by summary court-martial on two separate occasions.  

On 26 August 1969, the applicant was convicted by summary court-martial of being AWOL from 1 July to 7 August 1969.  His sentence included a forfeiture of $76.00 and confinement at hard labor for 1 month.  

On 19 May 1970, he was again convicted by summary court-martial, this time for two specifications of AWOL:  the first from 8 October 1969 to 10 January 1970; and the second from 16 February to 20 March 1970.  His sentence for these offenses included confinement at hard labor for 1 month (suspended), and a forfeiture of $76.00.  

While all the specific facts and circumstances leading to the applicant’s discharge from the Army are not contained in the available records, there is a statement of counseling on file, which was completed and signed by the applicant and his legal counsel on 14 May 1970.  This form shows that the applicant was advised by legal counsel of the basis for his contemplated separation, under the provisions of Army Regulation 635-206 by reason of conviction by a civil court, and of its effects on him.

In addition, the legal counseling statement on file contains an acknowledgement by the applicant that he understood that in the event he received an undesirable discharge he could be ineligible for many or all benefits as a veteran under both Federal and State Law, and that he could expect to encounter substantial prejudice in civilian life as a result of this discharge.  This statement also shows that he completed his election of rights, in the presence of counsel, by electing to waive his right to have his case considered by an administrative separation board and his right to a personal appearance before that board.  In addition, he elected not to submit a rebuttal statement to the separation action in his own behalf.

The evidence of record also contains a properly constituted DD Form 214
(Armed Forces of the United States Report of Transfer or Discharge), issued to and signed by the applicant on the date of his discharge, 12 June 1970.  This document shows that the applicant was separated with an undesirable discharge and that he had accrued a total of 181 days of time lost during his enlistment.  It also reveals that he was separated by reason of a conviction by a civil court after completing just 7 months and 24 days of creditable active military service.  

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

Army Regulation 635-206, in effect at the time, provided the authority for the administrative separation or retention of enlisted personnel who had committed an act and or acts of misconduct.  Section III of that regulation prescribed the standards and procedures for processing cases of individuals who, during their current term of active military service, had been convicted by a civil court.  

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 Board noted the contention of the applicant that he should not have to continue to suffer the effects of a bad discharge, and considered the numerous reasons he provided in support of his request for an upgrade to this discharge.  However, after careful examination of the evidence, the Board concludes that these factors are not sufficiently mitigating to warrant relief in this case.  

2.  The applicant’s record is void of the specific facts and circumstances concerning events that led to a discharge from the Army.  However, the Board noted that the applicant’s record contains a properly constituted DD Form 214, which was authenticated by the applicant.  This document identifies the reason and characterization of the discharge and the Board presumed government regularity in the discharge process. 
3.  The record also shows that the applicant was processed for discharge under the provisions of Army Regulation 635-206, by reason of conviction by a civil court; and that he had consulted legal counsel who advised him on his rights in connection with the separation action.  Further, after being advised by counsel of the basis for the contemplated separation action and its effects, the applicant elected to waive his right to an administrative separation board and personal appearance before that board; and he elected not to submit a rebuttal statement in his own behalf.  This satisfied the Board that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

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 has failed to submit evidence that would satisfy the this 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

___sk___  ___tsk___  ___jhk __  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR1999031963	
SUFFIX		
RECON		
DATE BOARDED	2000/07/25	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1970/06/12	
DISCHARGE AUTHORITY	AR 635-206	
DISCHARGE REASON	Conviction by Civil Court	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  189	110.0000	
2.		
3.		
4.		
5.		
6.