MEMORANDUM OF CONSIDERATION


	IN THE CASE OF:         
	     

	BOARD DATE:             6 May 1998                 
	DOCKET NUMBER:     AC97-07137

	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:




	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 the discharge was too harsh because he was young and inexperienced which caused him not to understand the process he was undergoing in relation to his civil conviction; that he had medical problems after Vietnam that nobody helped with; and that the discharge should have been based on his military service not based on his civil conviction.

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

On 26 September 1970 the applicant reenlisted for 3 years at Fort Leonard Wood, Missouri.  At the time of his reenlistment he held military occupational specialty (MOS) 12B (Combat Engineer); attained the rank of specialist/E-4; and completed a combat tour in Vietnam.  His prior service record also indicates he had earned the Vietnam Service Medal, the Vietnam Campaign Medal, and the National Defense Service Medal. 

The applicant’s record, for the period of service under review,  contains no specific acts of valor, achievement, or service warranting special recognition.  However, there are five separate periods of time lost due to AWOL and confinement related to the civil conviction for which he was ultimately discharged. The first AWOL period recorded was for AWOL 22 to 23 October 1970; the second was for AWOL from 30 December 1970 to 2 January 1971; the third was for civil confinement from 9 to 13 January 1971; the fourth was for AWOL 5 to 6 April 1971; and the last was for civil confinement from 9 April to 
29 June 1971.

On 9 April 1971 applicant was tried and convicted of armed robbery by the Pulaski Circuit Court, Waynesville, Missouri at which time he was sentenced to five years confinement by the State Department of Corrections in Jefferson City, Missouri.

On 16 April 1971 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.  On 22 April 1971 the applicant acknowledged receipt of the notification of separation and completed his election of rights and indicated his understanding of the contemplated reason for his discharge. His completed election of rights documented the following decisions by the applicant: he waived consideration of his case before by a board of officers; he waived personal appearance before a board of officers; he waived representation by counsel; and he elected not to submit a statement on his own behalf.  The applicant also indicated he did not intend to appeal his conviction.
Also on 22 April 1971 the applicant’s corrections case worker, at the Jefferson City Department of Corrections facility, witnessed the applicant’s election of rights and indicated the applicant was scheduled to remain incarcerated until 
8 January 1975. 

On 21 June 1971 the appropriate authority, after noting the applicant had waived his right to a hearing by a board of officers, directed the applicant’s discharge with a UD, under the provisions of AR 635-206.  Accordingly, on 19 June 1971 the applicant was discharged after completing 6 months and 1 day of his current enlistment and a total of 2 years, 5 months, and 29 days of active military service and accruing 95 days of time lost due to AWOL and civil confinement.

On 24 November 1982 the Army Discharge Review Board denied the applicant's request for an upgrade to his discharge and found that the discharge process was proper in all respects.

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 and the independent evidence submitted by the applicant does not support his contentions that his youth and immaturity, medical problems, or inability to understand the legal system mitigate his misconduct.  However, the evidence does support that the applicant was discharged, under the provisions of AR 635-206, for conviction by a civil court.  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 the misconduct or poor duty performance.

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