MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 14 November 2002
         DOCKET NUMBER: AR2002076434

         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. Arthur A Omartian		Chairperson
Mr. John P. Infante		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)

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APPLICANT REQUESTS: In effect, that his undesirable discharge be upgraded.

APPLICANT STATES: In effect, that while he was stationed at Fort Riley, Kansas, he was arrested for riding in a stolen automobile. He claims that when he was told the vehicle was stolen, he asked the driver to stop and let him out. He immediately left the car, but the driver was stopped by police and arrested for car theft. The driver told the police he was in the car, so the police picked him up along the road as he was walking back to Fort Riley. He states that he feels that the charge was unfair since he got out of the car as soon as he found out it was stolen. He claims that he was sentenced to 6 months in the county jail, of which he served 21/2 months, at which time he was released for good behavior. He states that while he was serving the sentence, he was discharged from the Army. He claims that he has never received his discharge papers, and he is now requesting that his UD be upgraded to an HD. He claims that under the circumstances, he feels the UD was unfair, and his now urgently needed medical benefits are in jeopardy.

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

On 7 September 1966, the applicant enlisted in the Regular Army for three years. He successfully completed basic training and advanced individual training (AIT) at Fort Knox, Kentucky. Upon completing his training he was awarded military occupational specialty 63H (Engineer Powertrain Repairer), and he was assigned overseas duty to Korea for his first permanent duty station.

On 31 October 1967, the applicant reenlisted for four years. His record shows that the highest grade he held while he was on active duty was specialist four (SP4), which he attained on 20 October 1967. His record reflects no acts of valor, significant achievement, or service warranting special recognition during his active duty tenure. However, it does contain an extensive disciplinary history that includes his acceptance of nonjudicial punishment (NJP) on six separate occasions between 6 October 1968 and 4 June 1969.

The record also shows that the applicant accrued a total of 145 days of time lost while serving on active duty, which included three separate incidents of his being absent without leave (AWOL). In addition, it shows that he was reduced in grade on three separate occasions as a result of his acceptance of NJP.

On 16 July 1969, the applicant plead guilty to and was convicted of the offense of joyriding, by the Court of Geary County, Kansas, and he was sentenced to six months imprisonment in the County Jail of Geary County.

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On 25 July 1969, the applicant’s unit commander notified the applicant that he was being recommended for elimination from the Army under the provisions of Army Regulation 635-206 because of his civilian court conviction, and that an UD may be issued.

On 26 July 1969, the applicant acknowledged receipt of the elimination notification and completed his election of rights. He confirmed that prior to completing his election of rights, he had been afforded the opportunity to consult with appointed counsel and he declined this opportunity. He further waived his right to consideration of his case by a board of officers, his right to a personal appearance before a board of officers, representation by counsel, and he elected not to submit statements in his own behalf. The applicant also indicated that he did not intend to appeal his conviction for joyriding.

On 18 August 1969, the applicant’s unit commander recommended the applicant’s elimination from the Army by reason of his civil conviction, and that the applicant receive an UD. The unit commander also indicated that the applicant had been convicted of a similar offense on 20 May 1969, and that he had been sentenced to six months of confinement in the Salina County Jail, Salina, Kansas, for that offense. In support of his recommendation, the unit commander indicated that the applicant was awaiting a special court-martial on charges of AWOL and breaking restriction when he was apprehended for the offense that led to his conviction for joyriding, and that he had accepted NJP on six separate occasions while assigned to the unit.

On 27 August 1969, the separation authority approved the applicant discharge under the provisions of Army Regulation 635-206, by reason of conviction by a civil court, and directed that the applicant receive an UD. On 26 September 1969, the applicant was discharged accordingly. The separation document
(DD Form 214) completed at that time confirmed that the applicant was separated with an UD, under the provisions of Army Regulation 635-200, by reason of civil conviction. At the time of his discharge, he had completed a total of 2 years, 7 months, and 28 days of creditable active military service, and had accrued 145 days of time lost due to AWOL and confinement.

On 26 September 1969, an official records envelope containing the applicant’s DD Form 214, Discharge Certificate, and copies of separation orders pertaining to the applicant’s discharge were mailed to applicant in care of the Sheriff, Geary County Jail, Junction City, Kansas.

There is no evidence to show that the applicant applied to the Army Discharge Review Board for an upgrade to his discharge within the 15 year statute of limitations of that board.

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Army Regulation 635-206, in effect at the time, provided the authority 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 notes the applicant’s contentions his joyriding conviction was unfair and that his discharge should be upgraded in order for him to receive medical benefits. However, after careful examination of the evidence, the Board concludes that these factors are not sufficiently mitigating to warrant the requested relief.

2. The evidence of record confirms that the applicant’s discharge processing was accomplished in accordance with the applicable regulations in effect at the time. The applicant was notified of the basis for the elimination action against him, and of his rights in connection with that action.

3. The record also shows that the applicant was afforded the opportunity to consult with counsel prior to the processing of the discharge action, however, he elected to waive his right to counsel, and to have his case considered by a board of officers. Thus, the Board is satisfied that all requirements of law and regulation were met and that the rights of the applicant were fully protected throughout the separation process.

4. The Board further notes that a separation packet that contained a copy of his DD Form 214, his discharge certificate, and separation orders was forwarded to him through the Sheriff, Geary County Jail. Therefore, the Board concludes that the applicant was properly provided a copy of the pertinent separation documents in his case.

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 the 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

__AAO__ ___JPI___ __RKS __ DENY APPLICATION

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

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INDEX

CASE ID	AR2002076434
SUFFIX
RECON
DATE BOARDED	2002/11/14
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	1969/09/26
DISCHARGE AUTHORITY	AR 635-206
DISCHARGE REASON	Civil Conviction
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 360	144.0000
2.
3.
4.
5.
6.