MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 17 June 2003
         DOCKET NUMBER: AR2003086882

         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. Luis Almodova		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Mr. Hubert O. Fry, Jr.		Member
Ms. Marla J. N. Troup		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 the man he was working for part-time on a car lot allowed him to drive the cars. He became angry when he [the applicant] "peeled rubber' in one of the cars and he later reported the car stolen and he was charged with theft. He adds that his part-time boss lied on him.

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

The applicant was inducted into the Army of the United States with an approved waiver on 9 August 1956. A waiver was required because the applicant had been adjudicated a juvenile delinquent. During the period from 18 February 1950 through 17 January 1951, he had broken into and looted automobiles.

On 29 September 1956, the applicant enlisted in the Regular Army for 3 years for an initial assignment in the Transportation Corps.

Following completion of basic combat training at Fort Chaffee, Arkansas, he was sent to Fort Eustis, Virginia, to undergo advanced individual training (AIT) in the military occupational specialty (MOS) 560.00, Seaman. After completion of his AIT, he was assigned to a series of units at Fort Eustis.

On 14 December 1956, while still in AIT, the applicant received a summary court-martial. He was found guilty of breaking restriction on 8 December 1956. He was sentenced to restriction to the limits of the company area for 15 days and to forfeit $25.00 per month for one month. The sentence was approved and ordered executed on the same date.

On13 May 1958, the applicant received a special court-martial. He was found guilty of wrongfully appropriating a 1951 Chevrolet and stealing a Zeiss-Ikon camera, another soldier's property. He was sentenced to be confined at hard labor for six months and to forfeit $28.00 per month for six months. The sentence was approved and ordered executed on 23 May 1958.

On 8 October 1958, the unexecuted portion of the sentence to forfeiture of $28.00 per month for six months was suspended, for two months, in Special Court-Martial Order Number 97, published by Headquarters, US Army 3rd Transportation Terminal Training Group, Fort Eustis.

On 2 August 1959, the applicant was arrested by the Newport News Police and was charged with larceny. He was tried and convicted of three counts of larceny

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and was sentenced to 180 days in the Newport News City Jail, Newport News, Virginia.

On 3 November 1959, the applicant was tried and convicted on the charge of grand larceny of an automobile. He was sentenced to twelve months confinement on the City Farm, Newport News.

On 4 December 1959, the applicant was notified that a recommendation was being made for his separation from the Army under the provisions of Army Regulation 635-206 due to his conviction by civil authorities and that an undesirable discharge was being recommended.

On 4 December 1959, the applicant waived his rights to be represented by counsel, to submit a statement in his own behalf, and to have his case considered by a board of officers. The applicant retained a copy of the waiver of his rights. In addition, he acknowledged that if an undesirable discharge was issued to him, that such discharge would be under conditions other than honorable; that as a result of such discharge, he would be deprived of many or all rights as a veteran under both Federal and State laws; and that he could encounter substantial prejudice in civilian life in situations where the type of service rendered in any branch of the Armed Forces or the type of discharge received therefrom may have a bearing.

On 2 February 1960, the commander's recommendation for the applicant's discharge was approved under the provisions of Army Regulation 635-206, based on his [the applicant's] civil conviction. The approval authority, a colonel, approved the recommendation for the applicant's discharge by reason of conviction by civil court and directed that he be furnished an undesirable discharge certificate.

The applicant was discharged in the rank and pay grade, Private, E-1, with an undesirable discharge on 17 February 1960 under the provisions Army Regulation 635-206. The applicant's character of service was characterized as under other than honorable conditions. He was awarded a SPN (separation program number) Code, 284, which identifies individuals who are discharged due to conviction by civil court or adjudged to be a juvenile offender during the current period of active duty.

The applicant’s record shows that the highest rank and pay grade he held on active duty was Private First Class, E-3. The record contains no documented acts of valor, achievement, or service warranting special recognition.

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Army Regulation 635-200, paragraph 3-7, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate. Whenever there is doubt, it is to be resolved in favor of the individual.

Army Regulation 635-200, also defines a general discharge as a separation from the Army under honorable conditions. When authorized, it is issued to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A characterization of under honorable conditions may be issued only when the reason for separation specifically allows such characterization.

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. Discharge proceedings were accomplished in accordance with law and regulations applicable at the time. There is no indication of procedural errors, which would tend to jeopardize the applicant's rights. The character of the discharge is commensurate with the applicant's overall record of service.

2. 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.

3. The Board noted the applicant's desire to have his undesirable discharge upgraded. There is no basis upon which to base an upgrade of the applicant's discharge considering the applicant's less than satisfactory service record.

4. The Board has determined that by entering into conduct that resulted in his being arrested, convicted, and incarcerated for larceny and grand larceny, the applicant diminished the quality of his service and did not meet the standards of acceptable conduct and performance expected of Army personnel; therefore, the applicant is not entitled to an upgrade of his undesirable discharge to an honorable or a general (under honorable conditions) discharge.

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5. 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

__fne___ __hof___ __mjnt__ DENY APPLICATION

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

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INDEX

CASE ID	AR2003086882
SUFFIX
RECON
DATE BOARDED	20030617
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	19600217
DISCHARGE AUTHORITY	AR 635-206
DISCHARGE REASON	A61.00
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	144.0000
2.	144.6100
3.
4.
5.
6.