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ARMY | BCMR | CY1997 | 9709653
Original file (9709653.rtf) Auto-classification: Denied

MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:

         BOARD DATE: 18 March 1998
         DOCKET NUMBER: AC97-09653

         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. John N. Slone Chairperson
Mr. Thomas N. Kuhn Member
Ms. Celia L. Adolphi Member

         Also present, without vote, were:
Mr. Karl F. Schneider Acting 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 a general discharge (GD).
APPLICANT STATES : In effect, that he was only 19 and had a hard time adjusting to military life; that he did his best while on active duty; that he became addicted to drugs and alcohol on active duty which had a bearing on his irrational behavior; that his civilian conviction had no bearing on his service; and lastly that he has had difficulty seeking employment based on his having a UD.

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

On 14 June 1967 the applicant enlisted in the Regular Army for 3 years at the age of 17. The applicant successfully completed basic training at Fort Lewis, Washington and advanced individual training (AIT) at Fort Knox, Kentucky. Upon completion of AIT the applicant was given military occupational specialty (MOS) 11E (Tank Driver) and assigned to Fort Meade, Maryland 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
14 October 1967. The applicant received no awards or decorations other than the National Defense Service Medal and the M-16 sharpshooter qualification badge. The record contains no other specific acts of valor, achievement, or service warranting special recognition. However, there is information showing a history of disciplinary infractions.

On 25 October 1967 the applicant accepted nonjudicial punishment (NJP), under the provisions of Article 15 of the UCMJ, for violation of Article 86; in that, on 24 October 1967, he did without authority fail to go to his appointed place of duty. His punishment for this offense included: an oral reprimand and a forfeiture of $20.00.

On 24 February 1968 he again accepted an NJP for violation of Article 86; for a period of AWOL between on 18 February 1968 and 22 February 1968. His resultant punishment included reduction to private/E-1; forfeiture of $51.00; and 30 days of restriction and extra duty.

On 20 March 1968 the applicant was arrested and confined by civil authorities at the Baltimore city jail. He was charged in the criminal court of Baltimore, in the state of Maryland, with armed robbery with a deadly weapon. The applicant was tried and convicted by the criminal court of Baltimore, Maryland at which time he was sentenced to six years in prison.

On 28 March 1969 the applicant was notified by letter that he was being considered for discharge from the Army based on his conviction by civil court.

On 2 May 1969 the applicant authenticated a statement with his signature in which he indicated that he had no intention of filing an appeal of his conviction, that he understood he could be discharged from the Army under the provisions of Army Regulation 635-206 for conviction by a civil court, and that the type of discharge normally awarded in these cases is UD. He also waived his right to have his case heard before a board of officers, his right to personal appearance before a board of officers, and elected not to submit a statement in his own behalf. He further stated he understood that as a result of receiving a UD he may be ineligible for many or all benefits as a veteran under both Federal and State laws, and that he could expect to encounter substantial prejudice in civilian life.

The appropriate authority approved the applicant’s discharge with a UD. Accordingly, on 6 June 1969 the applicant was discharged after completing 8 months and 19 days of active military service and accruing 459 days of time lost due to AWOL and confinement.

On 18 March 1980 the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge.

The applicant’s record is void of any information of alleged involvement with drugs and alcohol.

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.

2. The contentions of the applicant have been noted by the Board. However, they are not supported by either evidence submitted with the application or the evidence of record. The discharge process was in accordance with applicable law and regulations and the applicant's service was appropriately characterized.

3. 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.

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

DENY APPLICATION




                                                      Karl F. Schneider
                                                      Acting Director

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