MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           14 November 2002
	DOCKET NUMBER:   AR2002077123

	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	
	Mr. Joseph A. Adriance		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A Omartian		Chairperson	
	Mr. John P. Infante		Member	
	Ms. Regan K. Smith		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:  In effect, that his under other than honorable conditions (UOTHC) discharge be upgraded.  

APPLICANT STATES:  In effect, that he has completed restitution for his offenses since 1979.  In support of his application, he submits the enclosed character references and other documents attesting to his rehabilitation.  

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

He entered active duty on 23 January 1973 for four years.  He completed basic training at Fort Leonard Wood, Missouri and advanced individual training (AIT) at Fort Bliss, Texas.  Upon completion of AIT, he was awarded military occupational specialty (MOS) 11C (Indirect Fire Crewman), and he remained assigned to Fort Bliss for his first permanent duty station.  

The applicant’s record documents no acts of valor, significant achievement, or service warranting special recognition during his tenure on active duty, and it shows that the highest rank he attained was private/E-2 (PV2).  His disciplinary history includes his acceptance of nonjudicial punishment (NJP) on 12 October 1973, for being absent without leave (AWOL) from 9 to 12 October 1973. 

On 4 December 1974, the applicant was arrested for aggravated robbery.  On 
8 May 1975, he was arraigned for robbery in the District Court of the Third Judicial District, Salt Lake County, Salt Lake City, Utah.  He pled guilty to this offense and was ultimately convicted of the offense.  On 15 October 1975, he was sentenced to 1 to 15 years of imprisonment. 

On 8 March 1977, the applicant was notified that discharge proceedings under the provisions of Army Regulation 635-206 were initiated for his elimination from the Army by reason of his civil conviction, and that this could result in his receiving an UOTHC discharge.  

On 7 April 1977, the applicant acknowledged receipt of the commander’s notification of elimination action.  He completed his election of rights by requesting that his case be considered by a board of officers, and that he be provided counsel.  

On 6 June 1977, a board of officers convened at Fort Bliss, Texas, to consider the applicant’s case.  The applicant was unavailable due to his incarceration, however his counsel was present at the proceedings.  The Board found that the applicant was not desirable for further service because of his civil conviction, and it recommended his discharge UOTHC for misconduct on that basis.  

On 15 June 1977, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-206, by reason of his civil conviction, and he directed that the applicant receive an UOTHC discharge.  

The separation document (DD Form 214) published upon the applicant’s discharge confirms that on 15 August 1977, he was discharged UOTHC under the provisions of Army Regulation 635-206, by reason of civil conviction.  It also shows that on the date of his discharge, he had completed a total of 1 year, 
10 months, and 7 days of creditable active military service and he had accrued 987 days of time lost due to AWOL and confinement.  

On 21 June 1979, the Army Discharge Review Board (ADRB) denied the applicant’s request for an upgrade to his discharge after determining that his discharge had been proper and equitable.  

Army Regulation 635-206, in effect at the time, provided the authority for the administrative separation or retention of enlisted personnel who had committed an act and or acts of misconduct.  Section III of that regulation prescribed the standards and procedures for processing cases of individuals who, during their current term of active military service, had been convicted by a civil court.  

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 notes the applicant’s contention that his discharge should be upgraded because he has completed restitution for his offense since 1979.  It also carefully considered the character references and other documents the applicant submitted in support of his request.  However, it finds these factors are not sufficiently mitigating to warrant the requested relief.  

2.  The evidence of record confirms that the applicant was properly discharged in accordance with the applicable regulations in effect at the time.  The Board finds that the discharge accurately reflects the overall quality of the applicant’s record of service.  Therefore, it finds insufficient evidence to support upgrading the applicant’s discharge at this time. 

3.  The record also shows that the applicant’s case was considered by a board of officers at his request, he was represented by counsel, and the board after carefully considering the facts, recommended that he be discharge UOTHC, by reason of his civil conviction.  Therefore, the Board is satisfied that all requirements of law and regulation were met, and that the rights of the applicant were fully protected throughout the separation process.  

4.  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 the this requirement.

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

__AAO__  ___JPI___  __RKS  __  DENY APPLICATION

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

INDEX

CASE ID	AR2002077123	
SUFFIX		
RECON		
DATE BOARDED	2002/11/14	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1977/08/15	
DISCHARGE AUTHORITY	AR 635-206	
DISCHARGE REASON	Civil Conviction	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  360	144.0000	
2.		
3.		
4.		
5.		
6.