MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           19 March 2002
	DOCKET NUMBER:   AR2001064337

	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. Beverly A. Young 		Analyst	

  The following members, a quorum, were present:

	Ms. Shirley Powell		Chairperson	
	Mr. Elzey J. Arledge		Member	
	Mr. Stanley Kelley		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 under other than honorable conditions (UOTHC) discharge be upgraded to a general discharge.  The applicant also requests a formal hearing before the Board.

APPLICANT STATES:  That he did not get a hearing or was given the time to read any papers that he was made to sign.  He states that he was off-duty at the time of the offense in Nashville, Tennessee.  He contends that there has been an error and that his rights were overlooked.  The applicant did not provide any evidence in support of his application.

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

The applicant enlisted in the Regular Army on 29 August 1961 for a period of three years.  He successfully completed basic and advanced individual training at Fort Dix, New Jersey.  He completed basic airborne training at Fort Benning, Georgia, and was further assigned to Fort Campbell as a rifleman.  He was promoted to pay grade E-3 in May 1962.

On 1 November 1962, the applicant was found guilty of unauthorized use of an automobile in the Criminal Court of Davidson County, Nashville, Tennessee.  He was sentenced to serve not more than one year and one day in Nashville City Jail, Nashville, Tennessee.

A certificate authenticated by the applicant attested to the fact that he did not desire to appeal his conviction by civil court for larceny of an automobile on 1 November 1962.

On 1 December 1962, the unit commander requested that the applicant be discharged from the service prior to his normal expiration term of service (ETS) by reason of conviction of a civilian court.  

The separation authority approved the discharge under the provisions of Army Regulation 635-206, Section III, paragraph 22a, for conviction by civil court with issuance of an Undesirable Discharge Certificate.  

The applicant was discharged on 13 December 1962 with 10 months and 13 days total time in service and 152 days of lost time.

There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) 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.  Paragraph 22a of the regulation provided, in pertinent part, that members convicted by civil authorities would be considered for separation.  An undesirable discharge was normally considered appropriate.  
Army Regulation 15-185 governs operations of the Army Board for Correction of Military Records (ABCMR).  Paragraph 2-11 of this regulation states that applicants do not have a right to a hearing before the ABCMR.  The regulation provides that the Director of the ABCMR or the ABCMR may grant a formal hearing before which the applicant, counsel and witnesses may appear whenever justice requires.

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 applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  The applicant’s contentions were noted by the Board.  However, he has failed to show through the evidence submitted with his application or the evidence of record, that the actions taken in this case were in error on unjust.

3.  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.

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

SP______  EJA_____  SK______  DENY APPLICATION

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

INDEX

CASE ID	AR2001064337	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020319	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19621213	
DISCHARGE AUTHORITY	AR635-206.  .  .  	
DISCHARGE REASON	Conviction by Civil Court	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	144.0000	
2.		
3.		
4.		
5.		
6.