| Mr. | Raymond V. O’Connor, Jr. | Chairperson | |
| Ms. | Karen L. Wolff | Member | |
| Mr. | James P. Huber | Member |
| Mr. | Loren G. Harrell | Director | |
| Mrs. | Carolyn G. Wade | Analyst |
APPLICANT REQUESTS: In effect, that his undesirable discharge (UD) be upgraded to honorable.
APPLICANT STATES: In effect, that as a result of his conviction being set aside, his discharge is no longer valid; that he was subjected to double jeopardy, cruel and unusual punishment, and a violation of his constitutional and civil rights.
EVIDENCE OF RECORD: The applicant's military records show:
On 2 April 1963 he enlisted in the Regular Army for a period of 3 years. At the time of enlistment he was 17 years old, had completed 10 years of formal schooling, and achieved an Armed Forces Qualification Test score of 62 (i.e., mental category III). Also at the time of enlistment the applicant required a moral waiver of his juvenile and youthful offender record.
He was assigned to Fort Polk, Louisiana for basic combat training (BCT).
On 16 May 1963, at Fort Polk, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ, for sleeping on guard duty. His punishment consisted of 14 days restriction and extra duty.
On 1 July 1963 he was promoted to the rank of private/E-2.
On or about 5 July 1963, upon completion of BCT, he departed Fort Polk enroute to Fort Sam Houston, Texas for advanced individual training (AIT). The record indicates that he was AWOL from 17 to 23 August 1963.
On 23 August 1963 while riding in an automobile the applicant mistakenly identified a pedestrian as a member of a rival gang and shot and wounded him.
On 24 August 1963 he was confined by military authorities for a period of 2 days.
On 26 August 1963 he was confined by civil authorities for a period of 36 days.
On 13 December 1963 the applicant was convicted by a civil court of assault with the intent to commit murder and sentenced to 7 years confinement in the state penitentiary.
On 30 December 1963 the sentence was suspended and he was placed on probation.
On 3 January 1964 the applicant acknowledged his rights.
On 6 January 1964 the applicant authenticated a statement with his signature in which he indicated he did not intend to appeal the sentence imposed upon him.
On 9 January 1964 his commanding officer recommended that the applicant be discharged from the military with an undesirable discharge under the provisions of Section III, AR 635-206 due to his civil court conviction. The applicant elected to have his case considered by a board of officers.
On 30 January 1964 the applicant completed a statement of waiver, waiving his rights to a board of officers and declining to submit statements in his own behalf.
On 19 February 1964 the appropriate authority approved the applicant’s discharge with a UD. Accordingly, on 25 February 1964 the applicant was discharged after completing 9 months and 9 days of his 3 year enlistment and accruing 46 days of lost time.
On 7 October 1970 the civil court indictment was dismissed, the conviction set aside, and the service member was allowed to withdraw his guilty plea.
On 6 December 1977 and 27 November 1979 the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge.
The applicant’s record, as compiled by the Federal Bureau of Investigation (FBI), indicates 7 arrests and 6 convictions since his discharge from military service. The aforementioned FBI record indicates that the applicant was arrested and convicted of the following offenses: battery, possession of firearms and explosives, possession of an unregistered firearm and explosives, and sexual assault.
Army Regulation 635-206, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel who had committed an act or acts of misconduct (i.e., fraudulent entry, conviction by civil authorities, AWOL, and desertion). A UD was normally considered appropriate.
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 the aforementioned requirement.
2. The former service member’s administrative discharge was accomplished in compliance with applicable regulations and with no indication of procedural errors that would jeopardize his rights.
3. The type of discharge directed and the reasons for were appropriate considering all the facts of the case.
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
RVOC KLW JPH DENY APPLICATION
Loren G. Harrell
Director
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