MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            9 February 2000                  
	DOCKET NUMBER:   AR1999033916

	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. Joseph A. Adriance		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor Jr.		Chairperson	
	Ms. Deborah S. Jacobs		Member	
	Ms. Carol Jo Suiter		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 removed from his records.

APPLICANT STATES:  In effect, that after reviewing the civil records that his 1971 sentence and conviction in Jasper County, Missouri were unlawful, illegal, and unconstitutional.  He states that no judge ever signed the sentence and judgement which made the judgement illegal.  Further, he claims the docket was never signed by a Judge which makes the entire docket and what is presented in it meaningless, invalid, illegal, unlawful, maintaining of no jurisdiction.  In addition, he claims the court records show that no appeal was ever allowed in his case.  He concludes by stating that, based on the violations of several Articles of both the Missouri and the United States Constitutions, his discharge was not warranted and the proper action would be to strike the discharge at this time. 

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

On 20 August 1969, the applicant enlisted in the Regular Army for 3 years.  He successfully completed basic training and advanced individual training (AIT) at  Fort Leonard Wood, Missouri.  Upon completing his training he was awarded military occupational specialty 63B (Wheel Vehicle Mechanic) and he was assigned overseas duty to Germany for his first permanent duty station.

The highest grade the applicant held while he was on active duty was private/
E-2, which he attained on 20 December 1969.  His record reflects no acts of valor, significant achievement, or service warranting special recognition.  

On 2 January 1970, the applicant failed to report to Fort Dix, New Jersey for overseas movement and was declared AWOL and that on 31 January 1970, he was dropped from the rolls of his unit as a deserter.  The record indicates that he had accrued 578 days of time lost related to the civil conviction for which he was ultimately discharged. 

On 7 December 1970, a letter was prepared by a case worker of the Missouri Department of Corrections who worked at the Intermediate Reformatory facility at Jefferson City, Missouri.  This letter indicated that the applicant had arrived at their facility to serve a total sentence of 4 years, 2 years for burglary and 2 years for stealing.  It further indicates that the applicant advised them that he had been AWOL at the time he committed these offenses.  The letter goes on to indicate that the case worker was writing in behalf of the applicant who had an interest in being discharged as quickly as possible.  

On 1 March 1971, the acknowledged receipt of notification of the proposed action to discharge him from the Army by reason of conviction by civil authorities under the provisions of Army Regulation 635-206.  He also indicated that he understood that he could be issued an undesirable discharge (UD) but that all action is suspended for a minimum of 30 days to allow him to exercise his rights. 

He completed a his election of rights in which he made the following choices:  he waived his right to military counsel; he waived his right to have military counsel be appointed to represent him and to in his absence present his case before a board of officers; and he did not desire to submit a statement in his own behalf.  He further attested to the fact that he did not intend to appeal his conviction by the Circuit Court, Carthage, Jasper County, Missouri, wherein he was sentenced to serve 2 years for each offense for a total of 4 years for burglary and stealing at the Intermediate Reformatory, Jefferson City, Missouri.  The applicant’s statement was witnessed by a case worker at the Jefferson City Intermediate Reformatory on 1 March 1971.

On 2 July 1971, the applicant’s unit commander initiated action to separate the applicant, under the provisions of Army Regulation 635-206 by reason of conviction by civil authorities, his intentional absence without proper authority, and his excessive time lost in the service.  On 11 July 1971, the intermediate level commander recommended approval of the separation action and further recommended that the applicant receive an Undesirable Discharge Certificate.  

On 14 July 1971, the appropriate authority approved the applicant’s separation and directed that he be discharged with an UD.  Accordingly, on 20 July 1971, the applicant was discharged after completing just 3 months and 29 days of credible active service and having had accrued 578 days of time lost due to civil confinement.

There is no indication in the evidence of record 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.  Further, at the time of his application to this Board, the applicant was incarcerated in Mineral Point, Missouri.

Army Regulation 635-206, then in effect, provided in pertinent part 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 evidence of record supports the fact that the applicant was properly and equitably discharged under the provisions of AR 635-206, for conviction by a civil court.  The applicant’s conviction by civil authorities combined with the fact that he failed to appeal his civil conviction obligated military authority to consider him for discharge.  

2.  The Board noted the applicant’s contention that his civil conviction was illegal and violated several Articles of both the Missouri and United States Constitutions.  However, the evidence of record shows that the applicant initiated action, through a case worker, to provide for his expeditious discharge and that he completed an election of rights attesting to his understanding of the ramifications of the proposed separation action and waiving his right to military counsel.  The Board was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

3.  The Board further found that the discharge proceedings were conducted in accordance with law and regulations applicable at the time and that the character of the applicant’s discharge is commensurate with his overall record of military service.  Therefore, the Board concluded relief is not warranted in this case.

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 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:

__cjs___  __dsj__  _  ___rvo  _  GRANT

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999033919	
SUFFIX		
RECON		
DATE BOARDED	2000/02/09	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1971/07/20	
DISCHARGE AUTHORITY	AR 635-206	
DISCHARGE REASON	Civil Conviction	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1. 189	110.0000	
2.		
3.		
4.		
5.		
6.