MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           11 January 2001                   
	DOCKET NUMBER:   AR2000048226

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Ernest M. Willcher		Chairperson	
	Ms. Ann M. Campbell		Member	
	Mr. Donald P. Hupman, Jr.		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 discharge be upgraded.

APPLICANT STATES:  That the Army failed to consider his medical and military records.  He needs the upgrade to obtain VA benefits.  He provides no supporting evidence.

COUNSEL CONTENDS:  Counsel makes no additional contention.

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

He enlisted in the Regular Army on 15 October 1973.  He completed basic training.  He was assigned to Fort Sill, OK in December 1973 for on-the-job training in military occupational specialty 94B (Cook).  He apparently did not complete the training and was not awarded the specialty.

The applicant’s medical records are not available.

On 5 March 1974, the applicant was arrested by civil authorities for speeding and driving a stolen vehicle.  On 15 March 1974, he was tried and convicted of auto theft and was sentenced by the County Court of Wichita County, TX to 1 year confinement in the Wichita County jail.  He was then placed on probation for 1 year.

On 16 April 1974, the applicant’s commander initiated separation action under the provisions of Army Regulation 635-206 for misconduct, conviction by a civil court with confinement in excess of 1 year.  The maximum punishment under the Uniform Code of Military Justice for theft of a motor vehicle was a dishonorable discharge and confinement for 5 years.

On 16 April 1974, the applicant waived consideration of his case by a board of officers, waived personal appearance before such a board, waived representation by counsel, and elected not to submit a statement in his own behalf.  He stated that he did not intend to appeal the conviction.  

On 12 May 1974, the applicant was arrested by civil authorities for unauthorized use of a motor vehicle.  He was transported to the county jail on 13 May 1974, bail was set that day and a preliminary hearing set for 30 June 1974.

On 5 June 1974, the appropriate authority approved the recommendation and directed the applicant receive an Undesirable Discharge Certificate.

On 7 June 1974, the applicant was discharged, in pay grade E-1, under the provisions of Army Regulation 635-206 for civil conviction with a discharge under other than honorable conditions.  His Report of Separation from Active Duty,    DD Form 214, shows that he had completed 7 months and 23 days of creditable active service and had no lost time.

Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct (fraudulent entry, conviction by civil court, and absence without leave or desertion).  That regulation provided, in pertinent part, for the elimination of enlisted personnel for misconduct when they were initially convicted by civil authorities, or action taken against them which is tantamount to a finding of guilty, of an offense for which the maximum penalty under the Uniform Code of Military Justice is death or confinement in excess of 1 year.

On 15 May 1975 and 22 July 1977, the Army Discharge Review Board (ADRB) reviewed the applicant’s request for an upgraded discharge and denied his request on both occasions.

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.  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.

2.  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 applicant provides no evidence to support his implied contention that a medical condition may have resulted in the civil conviction for which he was discharged.  The evidence of record does not show that the five months the applicant served prior to his being arrested for auto theft were so meritorious as to justify upgrading his discharge to general.  

3.  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

__emw___  __amc___  __dph___  DENY APPLICATION

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

INDEX

CASE ID	AR2000048226	
SUFFIX		
RECON		
DATE BOARDED	20010111	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19740607	
DISCHARGE AUTHORITY	AR 635-206 	
DISCHARGE REASON	A61.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.