MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:           19 March 2002
DOCKET NUMBER:   AR2001063023

	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. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Ms. Shirley L. Powell		Chairperson	
	Mr. Stanley Kelley		Member	
	Mr. Elzey J. Arledge 		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 (UD) be upgraded to a fully honorable discharge (HD).

APPLICANT STATES:  That he believes that his discharge was unjustified because he was incarcerated in Dublin, Georgia, and military authorities were never informed of the complete facts surrounding his incarceration.  In support of his request, he submits separation processing documents from Headquarters, United States Army School/Training Center, Fort Gordon, Georgia, dated 15 April, 4 May and 24 June 1965, and a copy of the charges and sentence that he received from the Superior Court of Laurens County (Dublin), Georgia.

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

On 11 July 1963, he enlisted in the Regular Army (RA) for 3 years and training in military occupational specialty (MOS) 310 (Field Communications Crewman).  He completed basic and advanced individual training, and on 5 October 1963, he was assigned to Fort Carson, Colorado.

On 10 July 1964, nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), was imposed against him for failure to obey a lawful order and regulation.  His punishment included forfeiture of 
$15.00 pay for 1 month and 14 days’ extra duty and restriction.

On 19 September 1964, the applicant left his unit absent without leave (AWOL). On 21 October 1964, he returned to military control at the Special Processing Detachment (SPD), Fort Gordon, Georgia.  He remained in confinement until 29 November 1964.  He was also AWOL from 12 December 1964-5 January 1965 and from 20-26 January 1965.  

On 18 February 1965, the applicant was convicted by a special court-martial of 
being AWOL from 19 September-21 October 1964 and from 20-26 January 1965. He was sentenced to forfeiture of $65.00 per month for 3 months and to be confined at hard labor for 3 months.  

On 23 February 1965, the convening authority approved only that portion of the sentence that provided for forfeiture of $55.00 per month for 3 months.  The applicant's sentence to confinement was suspended for 3 months unless sooner vacated.  On the same date, he was released from confinement.

On 8 March 1965, the applicant left his unit AWOL.  On 28 March 1965, civilian authorities arrested him and he was placed in civilian confinement.  On 1 April 1965, in the Superior Court of Laurens County, he pled guilty to the charges of larceny of an automobile and burglary.  He was sentenced to a total of 15 years in civilian confinement.

On 4 May 1965, while in civilian confinement, the applicant's commander inquired about his intent to appeal his conviction.  The applicant indicated in an undated statement that he did not plan to appeal his conviction.

On 2 June 1965, the applicant's commander stated that both the applicant's conduct and efficiency ratings were unsatisfactory and he recommended that the applicant be eliminated under Army Regulation 635-206 with a UD.

On 24 June 1965, competent authority approved the recommendation and directed the issuance of a UD under the provisions of Army Regulation 635-206, due to conviction by a civil court while on active duty. 

On 30 June 1965, the applicant was discharged under the provisions of Army Regulation 635-206, due to conviction by a civil court while on active duty.  He had 1 year, 3 months and 16 days of active military service.  He also had 247 days lost time due to being AWOL and in confinement.

Army Regulation 635-206, then in effect, stated, in pertinent part, that an individual will be considered for discharge when an individual is initially convicted by civil authorities of an offense which involves moral turpitude, regardless of the sentence received or maximum punishment permissible under any code.  At the time, a UD was considered appropriate.

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 was convicted of larceny of a vehicle and burglary and was imprisoned for 15 years.  His conviction by civil authorities obligated military authorities to consider him for discharge.  In such cases, retention is normally only considered in exceptionally meritorious cases when clearly in the best interests of the Army. 

3.  The applicant’s discharge process was administratively correct and it was in conformance with the applicable regulations then in effect with no indication of procedural errors which would have jeopardized his rights.

4.  The applicant's discharge was appropriate because the quality of his service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel.  
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:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__SLP __  __SK ___  __EJA___  DENY APPLICATION

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

INDEX

CASE ID	AR2001063023	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020319	
TYPE OF DISCHARGE	(UOTHC)	
DATE OF DISCHARGE	19650630	
DISCHARGE AUTHORITY	AR635-206	
DISCHARGE REASON	A61.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	144.6100	
2.		
3.		
4.		
5.		
6.