MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           11 July 2000
	DOCKET NUMBER:   AR1999034212

	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
Mr. David H. Keller		Director
Analyst	

  The following members, a quorum, were present:

	Mr. Raymond J. Wagner		Chairperson	
	Mr. John Saputo		Member	
	Mr. Roger Able		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 undesirable discharge be upgraded to honorable or general under honorable conditions.

APPLICANT STATES:  That the presumption of regularity that might normally permit the Board to assume that the service acted correctly in characterizing his service as less than honorable does not apply to his case.  Clemency is warranted because it is an injustice for him to continue to suffer the adverse consequences of a bad discharge.  He has been a good citizen since discharge.  He believes his ability to serve was impaired by his youth and immaturity, his deprived background, and family problems.  In support of his request, the applicant submits several documents attesting to his post service record of good citizenship, and statements of character from friends and associates.

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

He enlisted on 27 March 1967 at the age of 17 and, after training, was assigned to Fort Leonard Wood, Missouri.  

On 14 September 1967, the applicant was tried by a general court-martial and found guilty of wrongfully and knowingly mailing a letter to a female containing obscene, lewd and lascivious matter, and absence without leave (AWOL) from 5 September 1967 to 4 October 1967.  He was sentenced to confinement at hard labor for 6 months, forfeiture of $64.00 per month for 6 months, and reduction in grade to private E-1.

On 27 September 1968, while in an AWOL status, the applicant was tried and convicted by the U.S. District Court, New Mexico, for interstate transportation of a stolen automobile and sentenced to an indeterminate (maximum 6 years) period of confinement in the Federal Youth Center, Ashland, Kentucky.

On 31 July 1969, the applicant’s commander recommended that he be discharged by reason of civil conviction under the provisions of Army Regulation 635-206.  The applicant consulted with counsel and waived consideration by a board of officers.  He acknowledged that he might expect to encounter substantial prejudice in civilian life if issued a discharge under other than honorable conditions, and that he may be ineligible for many or all benefits as a veteran under both federal and state laws.  He declined to submit a statement in his own behalf.

On 2 August 1969, the separation authority, a major general, approved the recommendation and directed that the applicant be issued an Undesirable Discharge Certificate.

The applicant was discharged on 14 August 1969 at Fort Knox, Kentucky.  He had 1 year, 4 months and 7 days of creditable service and 377 days of time lost.
Army Regulation 635-206, then in effect, provided, in pertinent part, that an enlisted member who was convicted by a civilian court of an offense for which the authorized punishment under the UCMJ included confinement of 1 year or more was to be considered for elimination.  The requirement for a board of officers could be waived by the separation authority provided the individual concerned was physically in civil custody at the time.  When such separation was warranted an undesirable discharge was considered appropriate.

There is no evidence that the applicant applied to the Army Discharge Review Board for 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 applicant's administrative separation was accomplished in compliance with applicable regulations, with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons therefor were appropriate considering all the facts of the case.

2.  The applicant’s contentions that he had a deprived background, was young and immature, and had family problems at the time is not sufficiently mitigating to warrant relief.

3.  While the Board has taken cognizance of the applicant’s good post-service conduct and accomplishments, these factors alone do not warrant the relief requested.

4.  An honorable discharge is a separation with honor, and is appropriate when the quality of the soldier’s service is so meritorious that any other characterization would be clearly inappropriate.  The applicant did not demonstrate that quality of service necessary to justify changing the characterization of his discharge.

5.  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 this requirement.

6.  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

__rjw___  __js_____  __ra_____  DENY APPLICATION

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

INDEX

CASE ID	AR1999034212	
SUFFIX		
RECON		
DATE BOARDED	20000711	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19690814	
DISCHARGE AUTHORITY	AR635-206	
DISCHARGE REASON	A61.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.	142.00	
3.		
4.		
5.		
6.