Author: +

ABCMR Memorandum of                                                                 AC97-05279
Consideration (cont)

MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        .

	BOARD DATE:             6 May 1998                 
	DOCKET NUMBER:    AC97-05279

	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.  The following members, a quorum, were present:

| Mr. | Samuel A. Crumpler | | Chairperson
| Mr. | Karen J. Newsome | | Member
| Mr. | Raymond V. O’Connor | | Member

	Also present, without vote, were:

| Mr. | Loren G. Harrell | | Director
| Mr | Joseph A. Adriance | | Analyst

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	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 undesirable discharge (UD) be upgraded to an honorable discharge (HD).

APPLICANT STATES:  In effect, that clemency is warranted because it is an injustice for him to continue to suffer the consequences of his bad discharge; that his conduct and efficiency ratings were good; that he had received awards and decorations; that his record of promotions was good; that he had other acts of merit; that he has been a good citizen since his discharge; that he was seeking help for a drug problem which impaired his ability to serve; and that his command abused its authority when it decided to give him a bad discharge.

COUNSEL CONTENDS:  Counsel has provided no issues or advanced additional contentions.

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

On 27 October 1972 the applicant enlisted in the Regular Army for 2 years at the age of 18.  The applicant successfully completed basic training at Fort Dix, New Jersey and advanced individual training (AIT) at Fort Jackson, South Carolina.  Upon completion of AIT he was awarded military occupational specialty (MOS) 71H20 (Personnel Specialist) and assigned to Fort Bliss, Texas for his first permanent duty station.

The applicant’s record documents that the highest rank he held on active duty was specialist/E-4 which he attained on 10 January 1974.  The record contains no specific acts of valor, achievement, or service warranting special recognition.

The record indicates the applicant had 204 days of time lost related to the civil conviction for which he was ultimately discharged.  The period of civil confinement contributing to the time lost was 9 July 1974 to 28 January 1975.

On 9 July 1974 the applicant was apprehended by the El Paso police, incarcerated in the El Paso, Texas County Jail, and charged with attempted murder.  On 23 September 1974 he was tried and convicted by the 34th Judicial District Court of El Paso County, Texas.  On 3 October 1974 he was sentenced to not less than two (2) nor more than seven (7) years confinement in the state penitentiary at Huntsville, Texas.

On 2 October 1974 the applicant’s unit commander notified the applicant of the intent to eliminate him from the Army, under the provisions of AR 635-206, based on his civil conviction.  The commander indicated that while the applicant had stated his intention to appeal the conviction he had failed to do so within the statute of limitations; this was verified through contact with the applicant’s attorney who indicated no appeal action would be taken.  On 4 October 1974 the applicant consulted counsel, and after being advised of the basis for the contemplated elimination action, completed his election of rights by requesting his case be heard by an administrative separation board of officers.

On 31 December 1974 an administrative separation board of officers convened at which the applicant’s counsel appeared; the applicant was not present due to his incarceration at Huntsville state prison.  The applicant’s counsel presented a statement from the applicant which he submitted on the applicant’s behalf.  The administrative separation board found that the applicant was undesirable for further retention in the military service because of his civil conviction, and recommended he be discharged from the service for misconduct (conviction by a civil court), with issuance of an Undesirable Discharge Certificate (DD Form 258A).

On 21 January 1975 the appropriate authority approved the findings of the administrative separation board and directed the applicant’s discharge with a UD.  Accordingly, on 28 January 1975 the applicant was discharged after completing 1 year, 8 months, and 8 days of active military service and accruing 204 days of time lost due to civil confinement.

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

Army Regulation 635-206, then in effect, provided in pertinent part 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 evidence of record supports that the applicant was discharged, under the provisions of AR 635-206, for conviction by a civil court.  The evidence of record and the independent evidence submitted by the applicant does not support his contentions.  The character of the discharge is commensurate with his overall record.  The conviction by civil authorities, to include the applicant’s failure to appeal, obligated  military authority to consider the applicant for discharge.  The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that the applicant’s service mitigated his misconduct.

2.  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 aforementioned requirement.

3.  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

                       DENY APPLICATION

						Loren G. Harrell
						Director