PROCEEDINGS


         IN THE CASE OF:
                 


         BOARD DATE: 29 July 1998
         DOCKET NUMBER: AC97-06332

         I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual. The following members, a quorum, were present:

Mr.	Fred K. McCoy		Chairperson
Ms.	Margaret K. Patterson		Member
Mr.	George D. Paxson		Member

         Also present, without vote, were:

Mr.	Loren G. Harrell		Director
Ms.	Carolyn G. Wade		Analyst

         The applicant and counsel if any, did not appear before the Board.

         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)

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant requests in effect, that his discharge under other than honorable conditions (UOHC) be upgraded to honorable and his reentry (RE) code be changed from RE-4 to RE-3.

3. The applicant states in effect, that someone in the discharge preparation process changed his RE code; that the NCOIC that signed his DD 214 was previously assigned to his prior section; that his command continuously questioned his medical profile and he had to constantly have it updated; that his command was aware of his marital/family problems and did nothing to ease the tension; and that he should not be penalized for one discrepancy in 18 plus years.

4. The applicant’s military records show that on 4 June 1985 the applicant was honorably discharged for the purpose of immediate reenlistment. On 5 June 1985 the applicant reenlisted in the Regular Army for a period of 4 years at the age of 35. At the time of reenlistment the applicant had 4 prior periods of honorable service, had attained the rank of staff sergeant/E-6, and held MOS 71L (Administrative Specialist). Over the course of his military career the applicant completed 4 overseas tours of duty, two in Germany, one in Vietnam, and one in Korea. His awards and decorations included: Army Commendation Medal, Army Achievement Medal, Good Conduct Medal, National Defense Service Medal, Armed Forces Expeditionary Medal, Vietnam Service Medal w/3 Bronze Stars, Humanitarian Service Medal, NCO Professional Development Ribbon, Army Service Ribbon, Republic of Vietnam Campaign Medal, Republic of Vietnam Gallantry Cross w/Palm, Certificates of Achievements, and Letters of Appreciation.

5. On 13 May 1987 the applicant was barred from reenlistment with the stipulation that he be allowed to extend his enlistment to meet retirement eligibility. He was barred for not passing the Army Physical Fitness Test (APFT), for being untrainable due to a medical profile, and an overall unsatisfactory performance in maintenance of his personal affairs and appearance.

6. On 9 September 1987 the applicant was charged with stealing a Rossi .38 caliber pistol valued at $104.00 property of a private/E-2 and two military knives. On 30 September 1987, after consulting with counsel, the applicant requested a chapter 10 in lieu of trial by court-martial. While the applicant does not elaborate on why he took the pistol he states in his sworn statement that he had intended to return the pistol and that he was demonstrating how easy it was to break into the Amnesty box.

7. On 16 October 1987 a physical examination cleared the applicant for discharge. On 12 November 1987 the unit commander recommended the applicant’s request for discharge be approved with a general discharge and the intermediate commander recommended approval with a UOHC. On 2 December 1987 a mental status evaluation cleared the applicant for discharge. On 14 December 1987 the separation authority approved the discharge with a UOHC. Accordingly, on 17 December 1987 the applicant was discharged after completing 2 years, 6 months, and 13 days of his current enlistment and a total of 18 years, 8 months and 23 days of active military service. He was appropriately assigned a separation code of KFS for in lieu of trial by court-martial and an RE code of RE-4.

8. On 13 January 1989 the Army Discharge Review Board (ADRB) denied the applicant’s request for an upgrade of his discharge.

9. Pertinent Army regulations provide that prior to discharge or release from active duty, individuals will be assigned RE codes, based on their service records or the reason for discharge. Army Regulation 601-210 covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the US Army Reserve. Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment. That chapter includes a list of armed forces RE codes, including RA RE codes.

10. RE-4 applies to individuals separated from the last period of service with a nonwaivable disqualification and are therefore ineligible for further enlistment. Individuals separated from service in lieu of trial by court-martial are so disqualified.

11. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

CONCLUSIONS:

1. The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations. There is no indication that the request was made under coercion or duress.

2. The overall quality of the applicant’s last period of service does not warrant an upgrade of the discharge. However, his prior terms of service which includes 16 years, 2 months, and 10 days of honorable service should be considered a complete and unconditional separation. To do otherwise would work an injustice upon him and his heirs by permanently attaching a stigma to his total military service, and possibly denying them the right to certain VA benefits when the overwhelming majority of his service was honorable.

3. The applicant’s separation code (KFS) in lieu of trial by court-martial was/is the basis for his RE-4 reentry code. There is no reason for removal or waiver of the disqualification which established the basis for the applicant’s reentry eligibility code.

4. In view of the circumstances in this case, the assigned reentry eligibility code was and still is appropriate.

5. In view of the foregoing findings and conclusions, and in recognition of his previous years of good service, it would be appropriate and proper to consider his honorable discharge on 4 June 1985 as a complete and unconditional separation from military service. The applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1. That all of the Department of the Army records related to this case be corrected by showing that the individual concerned was eligible for a complete and unconditional separation from the military service at the time of his honorable discharge on 4 June 1985.

2. That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:

___CHD_____ __SLP______ ___CLG_____ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ______________________
                  CHAIRPERSON