MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           10 January 2002    
	DOCKET NUMBER:   AR2001062596

	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	
	Ms. Wanda L. Waller		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Ted S. Kanamine		Member	
	Mr. John T. Meixell		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 be upgraded to honorable or general.  

APPLICANT STATES:  In effect, that he recently found out that he could get his discharge upgraded.  He contends that he could not adjust to military life.  In support of his application, he submits a letter of explanation and a Standard Form 180 (Request Pertaining to Military Records), dated 8 September 2001.

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

The applicant enlisted on 31 March 1961 for a period of 3 years.  He successfully completed basic training and was transferred to Fort Rucker, Alabama, for advanced individual training in aviation aircraft maintenance.   

On 8 September 1961, the applicant was convicted by a special court-martial of wrongfully appropriating a watch.  He was sentenced to be reduced to the grade of E-1, to be confined at hard labor for 6 months and to forfeit $50 per month for 6 months.  On 11 September 1961, the convening authority approved the sentence.  On 13 December 1961, the unexecuted portion of the sentence to confinement at hard labor was suspended until 18 March 1962. 

On 30 December 1961, the applicant was arrested by civil authorities in Alabama for Grand Larceny (auto theft).

On 13 March 1962, the applicant pled guilty and was convicted of Grand Larceny in Alabama.  He was sentenced to serve two years in the Alabama State Penitentiary.  

The applicant’s Service Record shows that he was confined by civil authorities from 30 December 1961 to 6 January 1962 and from 5 February 1962 to 
30 March 1962.

On 16 March 1962, the applicant’s unit commander recommended that he be separated under the provisions of Army Regulation 635-206, for misconduct.  He based his recommendation for separation on the applicant’s civil conviction for Grand Larceny in the State of Alabama on 13 March 1962.

The intermediate commander recommended that the applicant be separated from the military service under the provisions of Army Regulation 635-206 and that he be furnished an Undesirable Discharge Certificate.

The separation authority approved the recommendation on 16 March 1962 and directed that the applicant be issued an undesirable discharge.

Accordingly, the applicant was discharged under other than honorable conditions on 30 March 1962 under the provisions of Army Regulation 635-206 for misconduct due to being convicted by a civil court during his current term of active military service.  He had served 6 months and 22 days of total active service with 158 days lost due to confinement.

There is no indication in the available records which shows the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations. 

Army Regulation 635-206, in effect at that time, set forth the basic authority for the separation of enlisted personnel for misconduct.  Section VI of the regulation provided, in pertinent part, for the separation of personnel for conviction by civil court.  An undesirable discharge was normally considered appropriate.  

Army Regulation 635-200, paragraph 3-7, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

Army Regulation 635-200, paragraph 3-7, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the soldier’s separation specifically allows such characterization.

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 reviewed the applicant’s record of service and determined that the quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant is not entitled to an honorable discharge.

2.  The Board reviewed the applicant’s record of service which included one special court-martial conviction and 158 days lost time and determined that his military record was not satisfactory.  Therefore, the applicant is not entitled to a general discharge.

3.  The applicant’s administrative separation was accomplished in compliance with applicable regulations.  The type of discharge directed and the reasons for separation are appropriate considering all the facts of the case.

4.  The applicant has failed to show through the evidence submitted with his application or the evidence of record that the actions taken in his case were in error or unjust.

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

FNE____  TSK_____  JTM_____  DENY APPLICATION

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

INDEX

CASE ID	AR2001062596	
SUFFIX		
RECON		
DATE BOARDED	20020110	
TYPE OF DISCHARGE	(UOTHC)	
DATE OF DISCHARGE	19620330	
DISCHARGE AUTHORITY	AR 635-206  	
DISCHARGE REASON	Misconduct due to being convicted by a civil court during his current term of active military service	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110.0200	
2.		
3.		
4.		
5.		
6.