MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           30 October 2001                   
	DOCKET NUMBER:   AR2001057679

	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:

	Ms. Celia L. Adolphi		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. Harry B. Oberg		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 under other than honorable conditions (UOTHC) be upgraded.

APPLICANT STATES:  That he was not on post when he got into trouble.  He did not know he was an alcoholic until he joined the Army and started drinking regularly.  He did not understand the papers the Army sent him to sign, only that the detainer they had on him would be dropped so he signed.  He sincerely regrets his past.  He has lung cancer and would like to erase that past while he can.  He provides his pathology report and a character witness statement as supporting evidence.

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

After having had prior service in the Army National Guard, he enlisted in the Regular Army on 17 January 1969.  He completed basic combat training and advanced individual training and was awarded military occupational specialty 62K (Grader Operator).

The applicant first departed absent without leave (AWOL) on 14 June 1969.

On 15 December 1969, the applicant was convicted in civil court of being drunk, resisting arrest, and assault and battery.  He was returned to military control on 11 February 1970.

On 9 March 1970, court-martial charges were preferred against the applicant charging him with being AWOL for the periods 14 June to or about 11 October 1969, 15 to on or about 19 November 1969, and 30 November 1969 to on or about 11 February 1970.  Apparently, he departed AWOL again (on 11 April 1970) before he could be court-martialed.

On 6 May 1970, the applicant was arrested by civil authorities and charged with armed robbery.  On 5 June 1970, he was convicted in civil court of larceny of a person and was sentenced to confinement in the penitentiary for three years.

The applicant informed the Army that he was in civil confinement for robbery and stated “…I would appreciate it if you would arrange for me to get a discharge from the Army.”  By letter dated 29 October 1970, he provided additional information to the Army and stated “…I hope this information helps you in completing my discharge.”

On 24 March 1971, the applicant was informed by letter that action had been initiated to discharge him under the provisions of Army Regulation 635-206.  He was informed that an undesirable discharge could be issued.  He was informed the action was suspended for 30 days during which period he had the right to request a hearing before a board of officers, to be represented by military counsel, and to submit statements in his behalf.  On this date he informed his command that his time limit to appeal expired.  By letter dated 25 March 1971 he responded “Enclosed are the papers I received to fill out.”  If he filled out the statement of options, it is not available.  He questioned receiving an undesirable discharge and stated it was his hope to receive a general discharge. He added that he would accept whatever discharge was decided upon.  

On 8 June 1971, the appropriate authority approved the discharge recommendation and directed the applicant receive an Undesirable Discharge Certificate.

On 14 June 1971, the applicant was discharged, with a discharge UOTHC, in pay grade E-1.  The service copy of his Report of Transfer or Discharge, DD Form 214, with the authority for separation is not available.  His DD Form 214 shows he had completed 1 year, 6 months, and 25 days of creditable active service and had 307 days of 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.

Army Regulation 635-200 is the regulation currently in effect which governs the separation of enlisted personnel.  It states that the quality of service of a soldier is affected adversely by conduct that is of a nature to bring discredit on the Army or is prejudicial to good order and discipline, regardless of whether the conduct is subject to Uniform Code of Military Justice jurisdiction.  Characterization may be based on the conduct in the civilian community; the burden is on the soldier to demonstrate that such conduct did not adversely affect his or her service.

On 6 June 1980, the Army Discharge Review Board (ADRB) reviewed the applicant’s request for an upgraded discharge and denied his request.

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.  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 evidence of record shows that the applicant knew what he was signing and in fact he initiated the request for discharge at the time he informed the Army he was in civil confinement.  

3.  Considering the applicant’s record of AWOL and his conduct in the civilian community (twice convicted by civil authorities), the type of discharge given was and still is appropriate.  The Board is cognizant of his previous drinking problem and his current diagnosis of lung cancer; however, those factors do not warrant the relief requested.  

4.  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

__cla___  __aao___  __hbo___  DENY APPLICATION

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

INDEX

CASE ID	AR2001057679	
SUFFIX		
RECON		
DATE BOARDED	20011030	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19710614	
DISCHARGE AUTHORITY	AR 635-206	
DISCHARGE REASON	A61.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.