MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 20 September 2001
         DOCKET NUMBER: AR2001059592

         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
Mrs. Nancy Amos		Analyst

The following members, a quorum, were present:

Mr. Raymond J. Wagner		Chairperson
Mr. Kenneth W. Lapin		Member
Ms. Paula Mokulis		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: That his discharge under other than honorable conditions (UOTHC) be upgraded and his reentry (RE) code be changed.

APPLICANT STATES: That the circumstances behind his discharge made him look guilty when in fact he did not have anything to do with the alleged violation except as an unknowing driver. His case was dismissed in a court of law. If the requested relief was granted, the U. S. Navy would receive a highly dedicated and motivated sailor. He provides no supporting evidence.

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

He enlisted in the Regular Army on 27 March 1991. He completed basic training but not advanced individual training.

Between 22 September and 21 October 1991, the applicant received four General Counseling Forms, DA Form 4856, for writing a check for $38.50 with insufficient funds; smoking a cigarette in a nondesignated smoking area; failing to repair to formation; and leaving his room, wall locker and wallet unsecure.

On 14 March 1992, the applicant and two other privates were arrested by civil authorities for attempting to steal items from at least six vehicles.

On 8 April 1992, the applicant completed a separation physical and was found qualified for separation.

On 14 April 1992, the applicant underwent a mental status evaluation. He was found to have the mental capability to understand and participate in proceedings and to be mentally responsible.

On 17 April 1992, the applicant’s commander initiated action to separate the applicant under the provisions of Army Regulation 635-200, chapter 14 for misconduct. The commander cited the applicant’s civil arrest as the reason for the action. The installation administrative law attorney noted that according to the evidence the applicant had no role in the larceny except for being the “getaway driver.” However, Article 77 of the Uniform Code of Military Justice allowed him to be tried as a principal because of his sharing in the criminal purpose of design by intentionally rendering assistance to the other two criminals. The charge of larceny constituted the commission of a serious offense for purposes of separation. One of the two other privates involved stated “We were driving around with nothing else to do. And an idea was brought up of breaking into some cars. And it was somewhat mutually agreed upon to do so…(the applicant) drove. And (the other private) brought up the idea.”

On 21 April 1992, the applicant was advised by consulting counsel of the basis for the contemplated separation action. He waived consideration of his case by an administrative separation board contingent upon his receiving a characterization of service of no less favorable than a general discharge under honorable conditions.

On 21 April 1992, the applicant’s commander formally recommended the applicant’s separation for misconduct with a recommended characterization of service of UOTHC. The applicant’s request for a conditional waiver was disapproved by the appropriate authority and the case was referred to an administrative separation board.

On 10 June 1992, the applicant was advised by consulting counsel of the rights available to him and the effect of any action taken by him in waiving his rights. He voluntarily waived consideration of his case by an administrative separation board. He understood that if he were issued a discharge UOTHC that he could be ineligible for many or all benefits as a veteran and that he could expect to encounter substantial prejudice in civilian life.

On 11 June 1992, the appropriate authority waived the requirement for a rehabilitative transfer and approved the separation recommendation and directed the applicant receive a discharge UOTHC.

On 16 June 1992, the applicant was discharged, with a discharge UOTHC, in pay grade E-1 under the provisions of Army Regulation 635-200, chapter 14, for misconduct – commission of a serious offense. He had completed 1 year, 2 months, and 20 days of creditable active service and had no lost time. He was given a separation code (SPD) of JKQ and an RE code of 3.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, convictions by civil authorities, desertion or absence without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge UOTHC is normally appropriate for a soldier discharged under this chapter.

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 U.S. 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.

RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable.

Army recruiting personnel have the responsibility for initially determining whether an individual meets current enlistment criteria. They are required to process a request for waiver under the provisions of Chapter 4, Army Regulation 601-210, Regular Army and Army Reserve Enlistment Program.

Army Regulation 635-5, SPD/RE Code Cross Reference Table, states that when the SPD code is JKQ then RE 3 will be given.

On 26 July 2000, the Army Discharge Review Board (ADRB) denied the applicant’s request for an upgrade of his discharge.

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. 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. The applicant has failed to submit evidence that would satisfy this requirement.

2. 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. He was given the opportunity to present his case before an administrative separation board however; he waived his right to do so. The fact, for which no proof is presented, that his case was dismissed by a civil court is not tantamount to a finding that he was innocent of the charges.

3. Considering the seriousness of the offense for which he was arrested the characterization of his discharge as UOTHC was and still is appropriate. His earlier year of service prior to the incident for which he was discharged was insufficiently meritorious to warrant upgrading of his discharge.

4. Given the reason for the applicant’s discharge, the RE code given was and still is appropriate. Since presumably Navy enlistment criteria changes similarly to Army enlistment criteria, the applicant should periodically visit his local recruiting station to determine if he should apply for a waiver.

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

__rjw___ __kwl___ __pm____ DENY APPLICATION

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

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INDEX

CASE ID	AR2001059592
SUFFIX
RECON
DATE BOARDED	20010920
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	19920616
DISCHARGE AUTHORITY	AR 635-200, ch 14
DISCHARGE REASON	A60.00
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	110.00
2.	100.03
3.
4.
5.
6.