| Mr. Carl W. S. Chun | Director | |
| Mr. W. W. Osborn, Jr. | Analyst |
| Ms. Kathleen A. Newman | Chairperson | |
| Mr. Lester Echols | Member | |
| Mr. John T. Meixell | Member |
APPLICANT REQUESTS: That his undesirable discharge be upgraded to a general discharge.
APPLICANT STATES: A civilian offense, not his military record, caused his undesirable discharge. Based on his awards, his service in Vietnam warrants the requested relief. An upgrade would recognize his loyalty, patriotism and dedication to the United States.
EVIDENCE OF RECORD: The applicant's military records show:
He enlisted and entered active duty on 12 May 1967. After training as an infantryman, he served in Europe for about 6 months. He transferred to Vietnam on 2 April 1968.
The applicant received the Combat Infantryman Badge on May 1968. He attained pay grade E-3 effective 6 January 1969. He received the Bronze Star Medal for meritorious service on 19 March 1969. Apparently, the applicant returned to the United States on 29 March 1969. He was assigned to medical hold at Fort Rucker, Alabama on 5 June 1969.
He was absent without leave (AWOL) from 11 August to 21 December 1969. He was AWOL again from 23 December 1969 until 24 June 1970 and was in civilian confinement from 25 June until 18 December 1970. The applicant pled guilty to burglary before the Ogle County, Illinois Circuit Court. On 6 March 1970, he was sentenced to 8 months in the county jail and 3 years probation. He received no credit for the time already served.
The applicant acknowledged notice of intended discharge proceedings for committing that civilian offense. On 16 July 1970, he waived his rights to have a board of officers consider his case, to be represented by counsel at a board of officers, and to submit a statement in his own behalf. He indicated that he did not intend to appeal his conviction. The appropriate authority considered the case. He directed separation under Army Regulation 635-206 and issuance of an undesirable discharge by reason of misconduct due to civil conviction.
On 18 December 1970, the applicant was separated under the provisions of Army Regulation 635-206. He had 2 years, 2 months and 4 days of creditable service and 518 days lost time.
On 9 August 1972, the Army Discharge Review Board denied the applicant's request to upgrade his discharge.
Army Regulation 635-206, then in effect, provided that an enlisted member who was convicted by a civilian court of an offense for which the Uniform Code of Military Justice (UCMJ) authorized confinement of 1 year or more was to be considered for elimination. Soldiers who received such a civil conviction could be administratively separated if they were afforded a board of officers and the associated rights even though the available evidence might prove insufficient to warrant conviction in a trial by court-martial. When such separation was warranted an undesirable discharge was considered appropriate.
The Manual of Courts Martial, Table of Maximum Punishments, as then and as currently in effect, shows that the UCMJ authorizes 5 years confinement for the offense of burglary.
During the preparation of this case, the staff requested the applicant's Federal Bureau of Investigation (FBI) arrest record. The FBI record shows that the applicant's probation was revoked in 1972. He was convicted of burglary again in 1975 and 1976. He was sentenced to imprisonment for 1 to 5 years in both cases. He was arrested in 1998 for possessing cocaine, obstructing/resisting police and driving under the influence and in 2001 of conspiracy to sell [something] to minor[s]. No disposition is available for these last two incidents. The arrest record was forwarded to the applicant for rebuttal under the Board's ex parte communications policy. He did not respond within the allotted time.
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 combat service in Vietnam, especially as evidenced by his awards. However, his AWOLs and the civilian offense that led to his discharge are part of his record also. Both of these adverse factors made him unavailable for duty and both reflected unfavorably on the Army as well as the applicant. The redeeming former factors of his service do not outweigh his misconduct.
2. The discharge was conducted in accordance with law and regulations applicable at the time. The character of the discharge is appropriate to the applicant's overall record of military service.
3. Since the Board considers post-service factors as part of the basis when recommending discharge upgrades, the applicant's post-discharge criminal record is relevant. The Board does not normally recommend upgrading the discharge of anyone who has not been a law-abiding citizen since separation.
4. 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.
5. In view of the foregoing, there is insufficient basis to recommend approval of 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
__KAN__ __LE ___ ___JTM__ DENY APPLICATION
| CASE ID | AR2003083168 |
| SUFFIX | |
| RECON | |
| DATE BOARDED | 20031002 |
| TYPE OF DISCHARGE | |
| DATE OF DISCHARGE | |
| DISCHARGE AUTHORITY | |
| DISCHARGE REASON | |
| BOARD DECISION | GRANT |
| REVIEW AUTHORITY | |
| ISSUES 1. | |
| 2. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
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