MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           10 September 2002
	DOCKET NUMBER:   AR2002075108

	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. Nancy L. Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Mr. William D. Barr		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 a general discharge under honorable conditions.

APPLICANT STATES:  That he has been an outstanding citizen since his discharge.  He is a family man and a positive, respected, outgoing person in his community.  It was possible that, during his service during the Vietnam era, that he may have developed anxiety due to family and friends who were either wounded or killed in action.  He provides five character witness statements and his Report of Transfer or Discharge, DD Form 214, as supporting evidence.

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

He enlisted in the Regular Army on 12 December 1967.  He completed basic combat training.  

On 3 March 1968, the applicant was arrested by civil authorities on a charge of incest.  He was tried and convicted on 12 July 1968 and was sentenced by the Circuit Court of Cook County, IL to 5 years probation with the first year in confinement at the Illinois State Farm, Vandalia, IL.

On or about 2 August 1968, the applicant's commander initiated separation action under the provisions of Army Regulation 635-206 for misconduct, conviction by a civil court.

On 2 August 1968, the applicant waived military counsel, waived appointment of military counsel to him in his absence in presenting his case before a board of officers, elected not to submit a statement in his own behalf, and indicated that he did not intend to appeal his conviction.

On 23 August 1968, the applicant’s commander formally recommended the applicant's separation under the provisions of Army Regulation 635-206 for misconduct, conviction by a civil court.

On 11 September 1968, the appropriate authority approved the recommendation and directed the applicant receive an undesirable discharge.

On 13 September 1968, the applicant was discharged, in pay grade E-1, under the provisions of Army Regulation 635-206 for civil conviction with an undesirable discharge.  He had completed 2 months and 21 days of creditable active service and had 195 days of lost time.

Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct (fraudulent entry, conviction by civil court, and absence without leave or desertion).  That regulation provided, in pertinent part, for the elimination of enlisted personnel for misconduct when they were initially convicted by civil authorities, or action taken against them which is tantamount to a finding of guilty, of an offense for which the maximum penalty under the Uniform Code of Military Justice is death or confinement in excess of 1 year.  

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.  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.  While the Board has taken cognizance of his good post-service conduct, this factor does not warrant granting the relief requested.

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

__FNE __  __ BJE  _  __WDB __  DENY APPLICATION 

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

INDEX

CASE ID	AR2002075108	
SUFFIX		
RECON		
DATE BOARDED	2002/09/10	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1968/09/13	
DISCHARGE AUTHORITY	AR 635-206 	
DISCHARGE REASON	A61.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.