MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:           4 April 2002                  
	DOCKET NUMBER:   AR2001063812

	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:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. Roger W. Able		Member	
	Ms. Karen Y. Fletcher		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:  The applicant makes no contentions.

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

That prior to the period of service under review, he served honorably in the Regular Army (RA) from 30 June 1967-29 March 1968.  He served in military occupational specialty (MOS) 64A (Light Vehicle Driver).  

On 30 March 1968, while assigned to Germany, the applicant reenlisted in the RA for a period of 4 years, for training in MOS 64B (Heavy Vehicle Driver) and in pay grade E-3.  On 23 December 1968, the applicant was assigned to the Republic of Vietnam (RVN).  

On 25 September 1969, nonjudicial punishment (NJP) was imposed against the applicant under the provisions of Article 15, Uniform Code of Military Justice for disobeying a lawful order of a commissioned officer and for being intoxicated to the point of incapacitation so that he could not perform his duties on 23 September 1969.  His punishment included forfeiture of $65.00 pay for 1 month and 7 days’ extra duty.  

On 22 December 1969, the applicant was reassigned from the RVN and he returned to the United States.  On 22 January 1970, he was assigned to Fort Carson, Colorado.

The applicant's records do not contain all of the facts and circumstances surrounding the discharge process.  However, evidence that is available indicates that on 1 September 1970, civilian authorities in Colorado Springs, Colorado, apprehended the applicant and charged him with assault with the intent to commit murder.  In January 1971, he was convicted of assault with a deadly weapon and sentenced to an indefinite term at the Colorado Reformatory, Buena Vista, Colorado. 

The applicant's record also contains a properly constituted DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that was prepared at the time of separation.  The applicant’s DD Form 214 shows that on 16 August 1971, he was discharged in absentia, under the provisions of Army Regulation 635-206, for conviction by a civil court.  He was given a UD.  He had completed 2 years, 5 months and 2 days of active military service on the enlistment under review and he had completed 9 months on a previous period of enlistment.  He also had 350 days lost time due to being in civilian confinement. 

An undated letter from the Department of the Army, Headquarters, 5th Infantry Division (Mechanized), Fort Carson shows that, on an unknown date, the applicant's "UD Certificate, his DD Form 258A and his DD Form 214" were forwarded to him at the Colorado Reformatory.

There is no evidence that the applicant ever applied to the Army Discharge Review Board for review of his discharge.  

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.  There is no indication of procedural errors that would have jeopardized the applicant's rights.  Conviction by civil authorities obligated military authorities to consider the applicant for discharge.  Retention is normally only considered in exceptionally meritorious cases when clearly in the best interests of the Army. 

3.  The type of discharge directed and the reason for discharge was appropriate considering the facts of the case.

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

_AAO___  __RWA__  ___KYF _  DENY APPLICATION

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

INDEX

CASE ID	AR	
SUFFIX		
RECON	 	
DATE BOARDED	20020404 	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.