MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 13 December 2001
         DOCKET NUMBER: AR2001065124

         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. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Mr. Samuel A. Crumpler		Chairperson
Mr. Mark D. Manning		Member
Ms. Regan K. Smith		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)

APPLICANT REQUESTS: Reconsideration of his request for an upgrade of his undesirable discharge (UD) to a general, under honorable conditions discharge (GD).

COUNSEL CONTENDS: A Member of Congress representing the applicant has forwarded a request for reconsideration in his behalf. It asks that her constituent’s concerns be addressed and that the case be expeditiously handled given the applicant’s poor health. The reason cited for this request is, in effect, that at the time of his discharge, under other than honorable conditions (UOTHC), the applicant believed that he was being released from active duty for medical reasons. It is further indicated that while the applicant admits his conduct in the military was not always reflective of the military’s standard of performance, he did the best he could under the circumstances. The applicant believes that because of his difficult and abusive childhood, he was unprepared to cope with the Army’s rigorous demands and the diversity of his surroundings. Further, the applicant claims that his intake of alcohol and drugs became uncontrollable and contributed to his misconduct. The applicant’s Member of Congress indicates that records provided to her office confirm the applicant’s frequent encounters with legal authorities because of his habitual use of drugs and alcohol. Finally, it is indicated that the applicant has been able to contact witnesses that can substantiate his presence in Vietnam and his difficulty with substance abuse.

NEW EVIDENCE OR INFORMATION: Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's original consideration of his case on 29 March 2001, in Docket Number AR2001051114 (COPY ATTACHED).

On 6 March 1967, the applicant enlisted in the Regular Army and he continuously served on active duty until 18 March 1970, when he received an UD. His record contains an extensive disciplinary history that includes his trial and conviction by a special court-martial on three separate occasions and his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on two separate occasions.

On 27 October 1969, the applicant was confined by civil authorities for automobile theft. On 28 November 1969, he was tried for this offense by the Superior Court of Columbus, Georgia. He was convicted and sentenced to
1 year of confinement and 2 years of probation.

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On 17 December 1969, based on the applicant’s civil conviction and the resultant sentence to confinement in excess of 1 year, his unit commander initiated separation action against him. The applicant acknowledged receipt of the separation action and after being advised of his rights, he elected to waive consideration of his case by a board of officers, waive representation by counsel, and he chose not to submit a rebuttal statement in his own behalf.

On 8 January 1970, the applicant informed the Army that he did not intend to appeal his civil conviction or the resultant sentence. On 18 February 1970, the appropriate authority approved the applicant’s separation under the provisions of Army Regulation 635-206, by reason of misconduct-civil conviction by a civil court with confinement in excess of 1 year, and he directed that the applicant receive an UD discharge.

The available medical records contain no evidence showing that the applicant suffered from a medical condition that would have disqualified him from further service or from being discharged for misconduct. They also provide no indication that he suffered from a medically disabling condition that would have warranted his being processed for separation under regulatory medical provisions.

The DD Form 214 on file confirms that the applicant was separated under the provisions of Army Regulation 635-206, by reason of misconduct-conviction by a civil court with confinement in excess of 1 year. It also verifies that on the date of his separation, he had completed a total of 1 year, 7 months, and 17 days of creditable active military service and he had accrued 451 days of time lost due to AWOL and confinement.

Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct. It provided, in pertinent part, for the elimination of enlisted personnel for misconduct when they were initially convicted by civil authorities of an offense for which the maximum penalty under the UCMJ is death or confinement in excess of 1 year. At the time of the applicant’s separation, a characterization of service of UOTHC was normally considered appropriate for members separated under this provision and the regulation provided for the issuance of an UD.

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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 notes the applicant’s contentions that at the time of his discharge, he believed the Army was separating him for medical reasons, that his difficult childhood and his abuse of alcohol and drugs impaired his ability to serve, and that his overall record, which includes Vietnam service, supports an upgrade to his discharge. However, it finds none of these factors are sufficiently mitigating to warrant the requested relief.

2. The evidence of record confirms that the applicant’s separation processing was conducted in accordance with the applicable regulations in effect at the time and that his discharge accurately reflects his overall record of service.

3. The record shows that the applicant’s unit commander notified him that separation action was being initiated against him based on his civil conviction and the resultant confinement sentence. It also verifies that he acknowledged receipt of the commander’s separation notification and that after being advised of his rights, he waived his right to have his case heard by a board of officers, waived his right to representation by counsel, and he elected not to submit a rebuttal statement in his own behalf.

4. In addition, during his separation processing, the applicant notified the Army that he did not intend to appeal his civil conviction. This statement of intent allowed the Army to proceed with his separation processing by reason of civil conviction. Further, there is no evidence of record or independent evidence that would suggest that at the time of his discharge, the applicant had any reason to believe he was being processed for separation for medical reasons.

5. The available medical records give no indication that the applicant suffered from a disqualifying medical condition that warranted medical separation processing or that would have prevented his separation for misconduct. Thus, the Board finds insufficient evidence to support his claim that he should have been discharged for medical reasons.

6. The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

7. In view of the foregoing, there is no basis for granting the applicant's request.

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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

__SAC__ __MDM__ __RKS___ DENY APPLICATION

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

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INDEX

CASE ID	AR2001065124C
SUFFIX
RECON
DATE BOARDED	2001/12/13
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	1970/03/18
DISCHARGE AUTHORITY	AR 635-206
DISCHARGE REASON	Civil Conviction
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 189	110.0000
2.
3.
4.
5.
6.