MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           21 November 2002                   
	DOCKET NUMBER:   AR2002075790

	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. Lester Echols 		Member	
	Mr. Thomas Lanyi 		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 be upgraded to general.  

APPLICANT STATES:  In effect, that his parents died when he was young and he was raised by abusive relatives.  He dropped out of high school and joined the Army hoping for a better life.  He described his troubles in the Army and indicates that he had no way of knowing that his life in the Army would be no different than the life he had just left.  He also described his life after the Army which included four failed marriages and two serious accidents (vehicle and motorcycle).  He contends that he was young, uneducated and very unaware that Army life was no different than the life he came from, at least in his mind.  In support of his application, he submits a letter of explanation. 

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

The applicant enlisted on 28 February 1969 for a period of 3 years.  While in basic combat training, on 2 April 1969, nonjudicial punishment was imposed against the applicant for being absent without leave (AWOL) from 31 March 1969 to 1 April 1969.  His punishment consisted of restriction and extra duty.

On 4 August 1969, the applicant was convicted by a special court-martial of being AWOL from 18 May 1969 to 7 July 1969.  He was sentenced to be confined at hard labor for 4 months and to forfeit $82 per month for 4 months.  On 4 August 1969, the convening authority approved the sentence.  On 
16 September 1969, the unexecuted portion of the sentence to forfeiture of pay was suspended until 30 October 1969.  On 23 October 1969, the unexecuted portion of the sentence to confinement was remitted. 

The applicant was arrested by civil authorities on 5 February 1970 for burglary.  On 18 March 1970, the applicant pled guilty, was convicted of burglary and sentenced to one year of confinement. 

On 26 January 1971, the applicant was notified of his pending separation under the provisions of Army Regulation 635-206, for conviction by civil court.  The applicant waived consideration of his case by a board of officers, waived representation by appointed counsel and elected not to submit a statement in his own behalf.

On 7 April 1971, the applicant’s unit commander initiated action to separate him from the service under the provisions of Army Regulation 635-206 for civil conviction.  He based his recommendation for separation on the applicant’s civil conviction for burglary on 18 March 1970.

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

The separation authority approved the recommendation on 16 April 1971 and directed that the applicant be issued an undesirable discharge.

Accordingly, the applicant was discharged under other than honorable conditions on 5 May 1971 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 9 months and 28 days of total active service with 
49 days lost due to AWOL and 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 considered the applicant’s contentions that he was young and uneducated with many personal problems.  However, these matters are not grounds for upgrading a discharge.

2.  The Board reviewed the applicant’s record of service which included one nonjudicial punishment, one special court-martial conviction and 49 days lost time and determined that the quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  The Board also determined that his military record was not satisfactory.  Therefore, the applicant is not entitled to an honorable discharge or 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____  LE_____  TL______  DENY APPLICATION

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

INDEX

CASE ID	AR2002075790	
SUFFIX		
RECON		
DATE BOARDED	20021121	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19710505	
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.