MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 13 September 2001
         DOCKET NUMBER: AR2001061830

         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. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Mr. John E. Denning		Member
Mr. Terry L. Placek		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, his under other than honorable conditions (UOTHC) discharge and his reentry (RE) code of RE-4.

APPLICANT STATES: In effect, that he suffered from stress and depression at the time of his discharge, which was covered up during his separation processing.

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

On 4 March 1999, he enlisted in the Regular Army (RA) for 3 years, in the rank of specialist/E-4 (SPC/E-4) and the military occupational specialty (MOS) 19D (Cavalry Scout). At the time of this enlistment, he had completed just over
4 years of prior service in the Army National Guard (ARNG), where he had been trained in and awarded his MOS and earned his rank.

On 5 March 1999, the applicant arrived at Fort Hood, Texas, his first permanent active duty station, and was assigned to Troop B, 1^st Squadron, 7^th Cavalry Regiment, to perform duties in MOS 19D.

The applicant’s record documents no acts of valor, significant achievement, or service warranting special recognition during the period of his enlistment. However, it does confirm that on 27 July 1999, he departed absent without leave (AWOL) from his unit at Fort Hood and on 26 August 1999, he was dropped from the rolls of his unit. He remained away for 83 days until returning to military control on 17 October 1999, at the Special Processing Company, Fort Knox, Kentucky.

On 26 October 1999, a court-martial charge was preferred against the applicant for his violation of Article 86 of the Uniform Code of Military Justice (UCMJ) by being AWOL from 27 July to 17 October 1999. The applicant consulted legal counsel the same day, and after being advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized by the UCMJ, and the possible effects of a UOTHC discharge, he voluntarily requested a discharge for the good of the service, in lieu of trial by court-martial, under the provisions of chapter 10, Army Regulation 635-200.

On 16 August 2000, the applicant’s unit commander recommended his discharge request be approved. The commander indicated that his conduct had rendered him triable by courts-martial under circumstances which could lead to a bad conduct or dishonorable discharge. The unit commander also determined from his previous record that a discharge would be in the best interest of all concerned. The unit commander finally stated that there did not appear to be any reasonable grounds to believe that he was then or at the time of his misconduct, mentally defective, deranged, or abnormal and finally recommended that he receive an UOTHC discharge.
On 3 October 2000, the appropriate authority approved the applicant’s request for discharge and directed he be reduced to the lowest enlisted grade and receive an UOTHC discharge. Accordingly, on 21 November 2000, the applicant was separated after completing 1 year, 5 months, and 26 days of creditable active military service on his current enlistment and having accrued 82 days of time lost due to AWOL.

The record contains no information in regard to the applicant’s medical separation processing nor does it contain any medical records that confirm that the applicant suffered from a disqualifying medical condition at the time of his separation processing.

On 7 September 2001, the Army Discharge Review Board determined the applicant’s discharge had been proper and equitable and denied his request for an upgrade.

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 court-martial charges have been preferred. Although an honorable or general discharge may be authorized, a discharge UOTHC is normally considered appropriate.

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. RE-4 applies to members who are disqualified from continued service.

Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating soldiers from active duty, and the SPD codes to be entered on the DD Form 214. This regulation confirms that the SPD code of KFS is the appropriate code to be assigned to members separating for the good of the service, in lieu of trial by
court-martial, under the provisions of chapter 10, Army Regulation 635-200.

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Table 2-3 (SPD/RE Code Cross Reference Table) or Army Regulation 635-5 (Separation Documents) contains guidance on the assignment of RE codes based on the SPD code assigned. In this case, this regulatory guidance establishes RE-4 as the proper reentry code to assign to soldiers who had been assigned an SPD code of KFS and who are being separated for the good of the service, in lieu of trial by court-martial.

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 contention that he suffered from stress and depression and this medical condition was covered-up at the time of his discharge but it finds insufficient evidence to support this claim.

2. The evidence of record shows the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. The Board notes that, after consulting with defense counsel, the applicant voluntarily, and in writing, requested separation from the Army for the good of the service, in lieu of trial by court-martial. In doing so, he admitted guilt to the stipulated offense under the UCMJ.

3. Lacking evidence to the contrary, the Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. It also notes that the characterization of service for this type of discharge is normally UOTHC and that the applicant was aware of that prior to requesting discharge.

4. In addition, the Board finds no evidence of record that suggests the applicant suffered from a medical condition that would have prohibited his discharge. During his discharge processing, his unit commander confirmed that there were no grounds for concluding that he was mentally defective, deranged, or abnormal. Therefore, lacking independent evidence to the contrary, the Board must presume government regularity in the applicant’s medical discharge processing and finds an insufficient evidentiary basis to show his ability to serve was impaired by a medical condition.

5. In view of the circumstances in this case, Board concludes the UOTHC characterization of service and RE-4 code assigned the applicant upon his discharge were appropriate based on his overall record of service and the misconduct that resulted in his discharge.

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6. 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.

7. 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 __ __JED__ _ _TLP _ DENY APPLICATION

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

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INDEX

CASE ID	AR2001061830
SUFFIX
RECON
DATE BOARDED	2001/09/13
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	2000/11/21
DISCHARGE AUTHORITY	AR 635-200 C10
DISCHARGE REASON	In Lieu of Court-Martial
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 189	110.0000
2.
3.
4.
5.
6.