MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 18 October 2001
         DOCKET NUMBER: AR2001059209

         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.

Mr. Carl W. S. Chun		Director
Mr. Jessie B. Strickland		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Mr. Melvin H. Meyer		Member
Ms. Barbara J. Ellis		Member

         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)

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APPLICANT REQUESTS: That his undesirable discharge be upgraded to a more favorable discharge.

APPLICANT STATES: In effect, that his discharge should be upgraded because he turned himself into civilian authorities for the crime he committed.

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

He enlisted in Pittsburgh, Pennsylvania on 21 June 1958 for a period of 3 years. He successfully completed his training and was transferred to Korea on 22 November 1958 for duty as an infantryman. He was advanced to the pay grade of E-3 on 1 March 1959 and remained in Korea until 4 December 1959, when he was transferred to Fort Lewis, Washington.

On 24 February 1961, the applicant surrendered himself to police officials in Tacoma, Washington and admitted that he had burglarized a local drug store on 1 January, 4 February and 13 February 1961. He admitted to taking numerous amounts of drugs, a wristwatch, stamps, and other sundry items. He was jailed and appeared in Superior Court on 28 March 1961. He was found guilty of second degree burglary and was sentenced to 3 years, deferred after serving 60 days in jail. He was released from jail on 26 April 1961 to the custody of the Washington State Parole and Probation Department for counseling and was subsequently returned to military control.

An Armed Forces Police Report prepared on 26 February 1961 also indicates that the applicant admitted to being locked into a drug store at closing time for the purpose of obtaining drugs to overcome his mental problems and displayed a strong dislike for the military service. He stated that he hoped to get a dishonorable discharge.

The applicant underwent a neuropsychiatric examination on 27 April 1961 in which the examining psychiatrist indicated that he had seen the applicant on three previous occasions in February 1961. At that time the applicant was seeking assistance to get out of the Army and was informed that he could receive treatment but not assistance to get out of the Army. The psychiatrist indicated that the applicant went out and stole some drugs from a local drug store for the express purpose of being convicted of a civil offense to obtain a discharge. He indicated that the applicant had no psychiatric disease and cleared him for discharge.

On 2 May 1961, the applicant’s commander initiated action to separate the applicant from the service under the provisions of Army Regulation 635-206, based on his conviction by civil authorities. The applicant acknowledged the proposed separation, acknowledged that he did not intend to appeal his civil conviction and elected to submit a statement in his own behalf.
The statement submitted by the applicant indicates that the longer he stayed in the Army, the more depressed he became. He finally became so despondent that he came up with a plan to hide in a local drug store and be locked in after it closed. He did this on three occasions and on 9 February 1961 asked to see a psychiatrist because he felt unstable. He returned twice after this to see the psychiatrist and on the last visit turned the drugs over to the psychiatrist with the understanding that his name would never be mentioned. He then went to see a civilian lawyer to determine what would happen to him if he turned himself over to civilian authorities. The lawyer advised him to see a chaplain for assistance instead; however, when he did see the chaplains, they told him he was being foolish and that he should complete his remaining 4 months of service. He also stated that he believed that he was mentally unbalanced in some way but that he knew right from wrong when he committed the crimes with the hope that he would get an immediate dishonorable discharge and be punished by civilian authorities. He did not want to serve Army confinement and would not cooperate if forced to do so. Additionally, he stated that he knew he was hurting himself by his actions and that his parents would be hurt as well.

The appropriate authority approved the recommendation for discharge on 30 June 1961 and directed that he be furnished an Undesirable Discharge Certificate.

Accordingly, he was discharged under other than honorable conditions on 17 July 1961, under the provisions of Army Regulation 635-206, due to his conviction by civil authorities. He had served 2 years, 10 months and 28 days of total active service and had 61 days of lost time due to confinement by civil authorities.

There is no indication in the available records to show that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel. Paragraph 33 of the regulation provided, in pertinent part, that members convicted by civil authorities would be processed for separation. An undesirable discharge was normally considered appropriate.

Army Regulation 635-200, currently in effect, sets forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion or AWOL. A discharge under other than honorable conditions is 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 this requirement.

2. The applicant’s administrative separation was accomplished in compliance with applicable regulations with no violations or procedural errors which would tend to jeopardize his rights.

3. Accordingly, the type of discharge directed and the reasons therefor were appropriate considering all of the available 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

___fe ___ __mm___ ___be___ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2001059209
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2001/10/18
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	1961/07/17
DISCHARGE AUTHORITY	AR635-206/CON BY CIV AUTH
DISCHARGE REASON	CONV BY CIV AUTH
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 627	144.6100/A61.00
2.
3.
4.
5.
6.