MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 21 May 2002
         DOCKET NUMBER: AR2001062260

         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
Ms. Rosa M. Chandler		Analyst

The following members, a quorum, were present:

Ms. Jennifer L. Prater		Chairperson
Ms. Barbara J. Ellis		Member
Mr. Thomas Lanyi		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: That his bad conduct discharge (BCD) be upgraded to a general discharge (GD) under honorable conditions.

APPLICANT STATES: In effect, that he accepts the fact that he was discharged under other than honorable conditions and he feels like he has been a disgrace to the United States Government. However, he also feels that he has more than paid for his mistake. He would like to once again be viewed as a proud, productive member of society and requests that his BCD be upgraded based on his record of past performance and his more than 10 years of dedicated military service.

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

Prior to the period of service under review, he completed two honorable periods of service in the Regular Army (RA) from 19 January 1981 through 3 August 1983 and from 4 August 1983 through 15 December 1988, totaling 7 years, 10 months, and 27 days of creditable active service. Because he immediately reenlisted after each of the above periods of service, he was not issued a DD Form 214 (Report of Separation from Active Duty) at the end of either period. During this 7-plus years of prior service, there is no evidence of any disciplinary problems.

On 16 December 1988, while assigned to Schofield Barracks, Hawaii, the applicant reenlisted in the RA for 4 years and the CONUS (Continental United States) station of choice reenlistment option (Fort Stewart, Georgia). He reenlisted in his previous military occupational specialty (MOS) of 13B, Cannon Crewmember. He was a staff sergeant, pay grade E-6. On 30 August 1989, he was assigned to B Battery, 3^rd Battalion, 41^st Field Artillery, Fort Stewart.

On 9 March 1989, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for failure to go to his appointed place of duty at the prescribe time on or about 28 February 1989. His punishment included forfeiture of $313.00 pay for 1 month (suspended for 60 days) and 14 days’ extra duty and restriction.

On 15 November 1990, the applicant was reported absent without leave (AWOL) while his unit was enroute to Saudi Arabia and participation in Operation Desert Shield/Desert Storm. He remained AWOL until he returned to military control at A Company, 1^st Battalion, Provisional Unit, Fort Stewart on 19 February 1991.

On 24 June 1991, the applicant was convicted by a general court-martial of being AWOL from 15 November 1990-19 February 1991. He was sentenced to confinement at hard labor for 6 months and to be separated with a BCD.
The applicant served his sentence to confinement from 24 June 1991 through 21 November 1991. On 22 November 1991, he was released from confinement and placed on excess leave pending appellate review of his conviction.

On 25 September 1991, the convening authority approved the sentence as adjudged. The record of trial was forwarded to the United States Court of Military Review. On 15 April 1992, the United States Court of Military Review affirmed the findings and approved the sentence. The appropriate authority then ordered the BCD to be duly executed.

On 30 September 1992, the applicant was discharged in absentia under the provisions of chapter 3, Army Regulation 635-200, with a BCD as a result of his conviction in a trial by court-martial. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that he completed 11 years and 9 days of active military service and he had 248 days lost time due to being AWOL and in military confinement.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 3, paragraph 3-11, provides that a soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed.

In accordance Army Regulation 635-5, effective 1 October 1979, a DD Form 214 is no longer prepared for a soldier who is honorably discharged for the purpose of immediately reenlisting.

Commander, U.S. Total Army Personnel Command (PERSCOM) message 150800Z February 1995 clarified an earlier message concerning the requirement to add a statement in item 18 of the DD Form 214 concerning a member's initial term of service. It directed that the following statement would be added to all DD Forms 214 without exception: "Member (has) (has not) completed first term of service." The remark was required for employment agencies to determine the eligibility criteria for former service members applying for unemployment compensation. Normally, a member should not be considered to have completed the first full term of active service if separation occurs prior to the end of the initial contracted period of service. However, if a member reenlists prior to the completion of that period of service, the first term of service is effectively redefined by virtue of the reenlistment and should be considered to have been completed upon execution of a reenlistment contract. If a soldier has reenlisted, he or she is considered to have completed the first full term of enlistment.

---

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

2. Trial by court-martial was warranted by the gravity of the offense charged. Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the offense for which the applicant was convicted.

3. The applicant's DD Form 214 does not have the required statement, "Member has completed first term of service." The applicant should be issued a DD Form 215 (Correction to DD Form 214) adding the statement to his DD Form 214.

4. 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.

NOTE: The Board notes that the applicant's DD Form 214 does not contain the statement, ""Member has completed first term of service.". The Army Review Boards Agency Support Division - St. Louis is directed to issue a DD Form 215 including the statement in Item 18 (Remarks).



BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__jlp ____ ___bje __ ____tl ___ DENY APPLICATION

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

---

INDEX

CASE ID	AR
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020521
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.
2.
3.
4.
5.
6.