MEMORANDUM OF CONSIDERATION


	IN THE CASE OF:	BOARD DATE:            29 April 1998                   
	DOCKET NUMBER:    AC97-08317

	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).

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

On 5 August 1959 the applicant was voluntarily inducted into the Army of the United States for 2 years.  He successfully completed basic training and advanced individual training (AIT) at Fort Hood, Texas.  Upon completion of AIT he was awarded military occupational specialty (MOS) 111.10 (Light Weapons Infantryman) and was assigned to Fort Campbell, Kentucky for his first permanent duty station.

The applicant’s record documents that the highest rank he held on active duty was private/E-2 which he attained on 5 December 1959 and he earned the parachutist badge on 19 February 1960.  The record contains no other specific acts of valor, achievement, or service warranting special recognition.

The record indicates two periods of AWOL prior to the incident resulting in the applicant’s separation: the first period was from 2 to 3 April 1960; and the second was from 26 April to 29 May 1960.  Additionally, there was a period of AWOL recorded from 20 June 1960 to 11 January 1961 which was related to the civil conviction for which he was ultimately discharged.

On 23 July 1962 the applicant was arrested by the Missouri State Police in 
St. Louis, Missouri, and was charged with transporting a stolen vehicle interstate. On 25 July 1960 he was tried and convicted in the U.S. District Court of
St. Louis, Missouri.  The resultant sentence was not more than four years imprisonment at the Federal Correctional Institution at Ashland, Kentucky.

On 28 November 1960 the applicant’s unit commander recommended in a letter to the commanding general of the Armor Center and Fort Knox, Kentucky that the applicant be discharged under the provisions of Section III, AR 635-206 and furnished a UD.  The commander based his request on the fact that the applicant had been convicted by a civil court, and had failed to file an appeal of his conviction in the time allowed.


On 7 January 1963 the appropriate authority, pursuant to paragraph 5, AR 635-206,  waived the requirement for a hearing before a board of officers and directed the applicant’s discharge with a UD, under the provisions of paragraph 22a, AR 635-206.  Accordingly, on 11 January 1961 the applicant was discharged after completing 9 months and 9 days of active military service and accruing 242 days of time lost due to AWOL and civil confinement.

There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

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 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