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Decision Text

ARMY | BCMR | CY2002 | 2002083322C070215
Original file (2002083322C070215.rtf) Auto-classification: Denied
MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 21 August 2003
         DOCKET NUMBER: AR2002083322

         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. G. E. Vandenberg Analyst


The following members, a quorum, were present:

Mr. John N. Slone Chairperson
Mr. Roger W. Able 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: In effect, that his discharge be upgraded and his records corrected to show that he served more than 2 months and 26 days.

APPLICANT STATES: In effect, he was told that his discharge would be under honorable conditions because he could not cope with military life. He states that he believes that he had more creditable service than is reflected on his DD Form 214 (Report of Separation from Active Duty).

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

The applicant entered active duty on 28 August 1972 at the age of 18 with a 7 th  grade education.

On 5 November 1972, while still in basic training, the applicant went AWOL (absent without leave).

While in an AWOL status the applicant was arrested by civilian authorities. On 22 March 1973 a civilian court found the applicant guilty of two counts of burglary. He was sentenced to 4 years in prison but placed on probation and returned to military control effective 26 March 1973.

The applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) on 26 March 1973 for this period of AWOL.

On 6 May 1973 the applicant again went AWOL. He returned to military control on 3 June 1973 but again went AWOL on 8 June 1973.

On 1 October 1973 the military was notified that the applicant was again in civilian custody and officially ended his AWOL status as of that date.

The applicant failed to report in to his probation officer for four consecutive months, his probation was revoked (9 November 1973) and he was remanded to the Texas Department of Corrections facility in Huntsville, Texas.

On 21 November 1973 the applicant’s command elected to process the applicant for discharge under the provisions of Army Regulation 635-206, section VI, for civil conviction. The applicant was in civil confinement at the time.

On 12 December 1973, after consulting with counsel and being advised of his rights and options, the applicant acknowledged and waived his rights, under the provisions of Army Regulations 635-206, paragraph 33a, to have his case considered by a board of officers, to have a personal appearance before a board of officers, to submit a statement on his own behalf, and to be represented by counsel. He acknowledged he had been advised of and understood that he could receive an under other than honorable conditions (UOTHC) discharge which would deprive him of many or all of his benefits as a veteran and that he could expect to experience substantial prejudice in civilian life if he received an UOTHC discharge. In a separate statement he stated that he did not intend to appeal his civil conviction.

The separation authority approved the recommendation to discharge the applicant. He directed that the applicant be issued an Undesirable Discharge Certificate.

The applicant was discharged on 20 December 1973, under other than honorable conditions. He had 2 months and 28 days of creditable service with 362 days lost due to AWOL or confinement.

Army Regulation 635-206, then in effect, provided, in pertinent part, that an enlisted member who was convicted by a civilian court of an offense for which the authorized punishment under the UCMJ included confinement of 1 year or more was to be considered for elimination. The requirement for a board of officers could be waived by the separation authority provided the individual concerned was physically in civil custody at the time. When such separation was warranted an undesirable discharge was considered appropriate.

The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the UCMJ. A punitive discharge and confinement for 10 year is authorized for offenses under Article 129, burglary.

DISCUSSION : Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record and applicable law and regulations, it is concluded:

1. The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights. The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

2. The applicant may have had problems adjusting to military life, as demonstrated by his repeated periods of AWOL; however, he was discharged for the criminal behavior that lead to his civil conviction not for an inability to adjust.

3. There is no substantiation to show that he was told he would receive a general discharge.
4. The applicant’s creditable service of 2 months and 28 days is correct as shown on his Report of Separation from Active Duty.

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

__JNS___ __RWA_ ___RKS__ DENY APPLICATION



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


INDEX

CASE ID AR2002083322
SUFFIX
RECON
DATE BOARDED 20030821
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION DENY
REVIEW AUTHORITY
ISSUES 1. upgrade
2.
3.
4.
5.
6.


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