MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 29 November 2001
         DOCKET NUMBER: AR2001059710

         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. Raymond V. O’Connor, Jr.		Chairperson
Mr. John P. Infante		Member
Mr. William D. Powers		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 discharge under other than honorable conditions be upgraded to a general discharge.

APPLICANT STATES: In effect, that while serving in Germany, he was informed that he was being transferred to Fort Dix, New Jersey, for the purpose of being tried in a civilian court for a crime that occurred prior to his entry on active duty. Shortly after his arrival at Fort Dix, he was turned over to civilian authorities and because of his inability to secure private counsel due to a lack of funds, he plead Non-vult and was sentenced to a life term. In February 1983, he received a notification of proposed separation from the service and was assigned a military counsel. He goes on to state that he never spoke with his counsel and that all contact was made through the mail. It was not until May 1983 that he was informed that he had been discharged under other than honorable conditions. He further states that his constitutional rights were violated in that he was not permitted to consult with counsel prior to his being discharged and he was discharged for a crime that was committed prior to his enlistment and which had no bearing on the characterization of his service. He also states that his counsel was ineffective in that he did not contact him and failed to establish the fact that the crime for which he was convicted did not occur while he was in the service. Additionally, his records, as submitted to the board of officers were incorrect and incomplete and did not provide the board members with the proper information needed to make a fair and impartial decision in his case. He continues by stating that he never waived his right to appear before the board of officers and had he been afforded the opportunity, he would have told them that he did not commit the crimes for which he was convicted. However, because he could not afford to pay for legal counsel, he was declared indigent and was coerced into pleading non-vult by his attorney and the prosecution. Additionally, he contends that the board of officers were informed that he was absent without leave (AWOL) during the time he was in the hands of civil authorities, which was information that should never had been made known to the board.

EVIDENCE OF RECORD: The applicant's original military records jacket was not available for review by the Board. However, a reconstructed record used at the time of the applicant’s separation shows:

He enlisted in the United States Army Reserve on 13 June 1980 under the delayed entry plan and enlisted in the Regular Army on 10 July 1980 for a period of 3 years, assignment to Europe and training as a radio operator. He successfully completed his training and was transferred to Germany for duty as a radio operator.

Although not explained in the available records, the applicant was arrested in Atlantic County, New Jersey, on 29 July 1981 and indicted on one count of possession of a weapon for unlawful purposes and two counts of murder on 6 May 1980. He retracted his plea of not-guilty on 1 February 1982 and entered a plea of Non-vult to two counts of homicide. He was sentenced on 19 February 1982 to a life sentence and a fine of $10,000.00. Non vult is a plea similar to nolo contendere and carries the implications of a plea of guilty.

On 9 November 1981, orders were published in Germany which reassigned the applicant to the Personnel Control Facility at Fort Dix, New Jersey, with a report date of 23 November 1981. The orders specified that the applicant was to be tried in civil court.

On 14 February 1983, the applicant’s commander initiated a notification of proposed separation from the service under the provisions of Army Regulation 635-200, chapter 14, based on his civil conviction. The notification advised the applicant that he had the right to consult with his assigned military counsel by correspondence, that he had a right to have his case heard by a board of officers, and to submit matters in his own behalf. In the event he did not respond within 30 days, a waiver of his rights would be assumed.

On 16 February 1983, he acknowledged receipt of the proposed separation. He also indicated that he intended to appeal his civil conviction, that he did not consult with counsel and that he desired his case to be considered by a board of officers. Although illegible for the most part, the applicant submitted a statement in his own behalf whereas he asserted that that he was not sure he had been afforded all of his rights, that he desired to speak with counsel, that he desired to obtain his personal property from his unit in Germany, and that he desired to be reimbursed the funds he contributed to the education fund.

On 22 April 1983, a board of officers convened at Fort Dix with the applicant being represented in absentia by military counsel. It was noted at the time that the applicant’s records could not be located, that records had to be reconstructed, and that neither the prosecution or defense could establish the actual dates that the crimes for which the applicant was convicted occurred.

The recorder made the argument that given the severity of the crimes for which he was convicted, it was inconceivable that his limited service could override the seriousness of the crimes for which he was convicted. Additionally, if the crimes were committed prior to his entry into the service, then it became apparent that he attempted to flee by entering the Army.

The defense counsel argued that while the applicant should not be retained, he had served approximately 1 year in the Army without any documented disciplinary incidents and should receive a general discharge. He further contended that upon his eventual release from prison he would need his education benefits to obtain training that would make him a productive member of society. He also argued that the applicant had been wrongfully charged with being AWOL when he (the applicant) contended that he was not AWOL and that he was on a permanent change of station to Fort Dix. The defense counsel also indicated that he had correspondence from the applicant but would not enter it into evidence due to the personal nature of the communication.

The board of officers found that retention of the applicant in military service was undesirable due to his civil conviction and recommended that he be discharged under other than honorable conditions.

Information obtained from civil authorities in New Jersey on 5 May 1983 indicates that the applicant had 45 days after sentencing in which to file an appeal and that there was no record of his having done so.

Accordingly, he was discharged under other than honorable conditions on 24 June 1983 under the provisions of Army Regulation 635-200, chapter 14, for conviction by civil authorities. He had served 1 year and 18 days of total active service and had 1 year, 10 months and 26 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 635-200, chapter 14, provides the provisions for discharging enlisted personnel from the service based on conviction by civil authorities. It provides, in pertinent part, that an individual will be considered for discharge when convicted by civil authorities or action is taken that is tantamount to a finding of guilty and the sentence by civil authorities includes confinement for 6 months or more or would be authorized a punitive discharge if punished under the Manual for Courts Martial. There are no provisions under this regulation that require the offense to be committed while serving on active duty; however, the conviction must occur while on active duty in order to apply under this regulation. 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. Although the absence of the applicant’s original military records makes it difficult at best to ascertain the time line of events, there is sufficient evidence to show that the applicant was arrested in July 1981 in New Jersey, while he was stationed in Germany. The only orders contained in his records and which are also provided by the applicant, show that orders were not published by the Army until November 1981, which transferred him to Fort Dix for the purpose of being tried in civil court.
2. The Board has noted the applicant’s contention that he was unjustly discharged for a crime that was committed prior to his entry into the service and finds it to be without merit. While the Board concedes that the crime was committed prior to his entry into the service, his discharge was based on his conviction and appears to have been accomplished in accordance with the applicable regulations in effect at the time.

3. The applicant’s contention that he was unable to communicate with counsel also appears to be without merit. The applicant was notified that he could communicate with his counsel by correspondence and the evidence of record bears out that he did so. While he may have desired more communication with his counsel, he could have conveyed this to his counsel in his correspondence.

4. The applicant’s contention that his rights were violated are not supported by either the evidence submitted with his application or the available evidence of record. Therefore, lacking evidence to the contrary and given his undistinguished record of service during such a short period, the Board finds no basis to upgrade his discharge.

5. 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.

6. 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

__rvo ___ ___wdp__ ___jpi___ DENY APPLICATION

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

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INDEX

CASE ID	AR2001059710
SUFFIX
RECON
DATE BOARDED	2001/11/29
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	1983/06/24
DISCHARGE AUTHORITY	AR635-200/CH14
DISCHARGE REASON	A60.00/CONV BY CA
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 626	144.6000/A60.00
2.
3.
4.
5.
6.