MEMORANDUM OF CONSIDERATION


	IN THE CASE OF: 

	BOARD DATE:             3 June 1998                 
	DOCKET NUMBER:     AC97-09670

	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 he was a problem drinker in 1964 when off duty; that while on duty he was a good soldier and worked hard; that he had been drinking when he committed the offense that resulted in his civil conviction; and that as of now he no longer drinks alcohol.

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

On 7 May 1963 the applicant was inducted into the Army of the United States for 2 years at the age of 18.  The applicant successfully completed basic training at Fort Dix, New Jersey and advanced individual training (AIT) and airborne training at Fort Benning, Georgia.  Upon completion of AIT and airborne training he was awarded military occupational specialty (MOS) 111.07 (Light Weapons Infantryman) with the additional skill identifier of P (Parachutist), and remained at Fort Benning for his first permanent duty station.

The applicant’s record documents that the highest rank he held on active duty was private first class/E-3 which he attained on 10 March 1964.  The record contains no specific acts of valor, achievement, or service warranting special recognition.

The applicant’s record documents a period of AWOL from 18 to 24 January 1965 as a result of being confined by civil authorities in Hamilton, Georgia for simple assault.  The applicant began another period of AWOL on 2 February which ended on 12 February 1965 as a result of his arrest by civil authorities.

On 13 February 1965 the applicant was apprehended by the Columbus, Georgia police, while in an AWOL status, for suspected auto theft and no driver’s license. On 4 June 1965 he was tried and convicted by the Muscogee Superior Court, Muscogee County, Columbus, Georgia.  He was sentenced to not less than one (1) year confinement in the Georgia state penitentiary.

On 7 June 1965 the applicant was notified of the intent to eliminate him from the Army, under the provisions of AR 635-206, based on his civil conviction.  He acknowledged receipt  and completed a statement in which he attested to the fact that he did not intend to appeal the conviction; that he understood that he was being processed for separation based on his civil conviction; and that in most cases the type of discharge awarded was undesirable. 



On 7 June 1965 the applicant’s unit commander recommended the applicant be discharged from the service, under the provisions of AR 635-206, for misconduct (conviction by a civil court), with issuance of an UD.

The appropriate authority approved the separation action and directed the applicant’s discharge with a UD.  Accordingly, on 14 July 1965 the applicant was discharged after completing 1 year, 8 months, and 18 days of active military service, and accruing 170 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 the 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 Board noted the applicant’s contention that alcohol use impaired his ability to serve.  However, this factor does not mitigate the applicant’s misconduct sufficiently to warrant an upgrade of his discharge.  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 authorities to consider the applicant for discharge.  

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 AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION




						Loren G. Harrell
						Director