MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:



         BOARD DATE: 26 MARCH 2002
         DOCKET NUMBER: AR2001063686

         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. Deborah L. Brantley		Senior Analyst

The following members, a quorum, were present:

Mr. George D. Paxson		Chairperson
Ms. Deborah S. Jacobs		Member
Mr. Ronald E. Blakely		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 RE (Reenlistment Eligibility) Code of “4” be changed to an RE-3.

APPLICANT STATES: In effect, that during his court-martial he requested that he be released from active duty. He states, in effect, that while he was assigned to Fort Knox, Kentucky, he had a conflict with his unit commander because his unit commander, a captain, was consistently late turning in his training schedules and the applicant, who worked for the battalion training officer, a major, supported him “to ensure that I [the applicant] got the training schedules in a more timely manner.” The applicant contends that this “started a cold war” between him and his unit commander. He states that he reenlisted for an assignment at Fort Bragg and had received reassignment order, cleared the installation, and “was ready to go” when he was notified that he was going to be deployed as part of Desert Shield to assist in a new training program. He states that his girlfriend (now his wife) was concerned about his deployment because she had seen the applicant’s unit commander “following her home, to the commissary, and just around post.” The applicant states that he “considered this as a threat” to his girlfriend and believed he “had no choice but to get [her] out of a possible bad situation that would threaten her innocence.” He states he drove his girlfriend home to her mother in Florida, but did not have sufficient funds to return to Fort Knox so contacted the military “so that [he] would be picked up….” He states that civilian authorities picked him up and he spent 6 days in a civilian jail before being turned over to “federal marshals” who took him to the airport and allowed him to “travel un-escorted back to Fort Knox.” He notes that when he “finally arrived in Louisville, there was nobody there to pick [him] up” and he had to contact his unit and his first sergeant finally came for him. The applicant maintains that he felt, in effect, that his unit commander was “a domestic enemy, that threatened [his] home life” and that because of all the confusion he made a bad choice. He states that he would like a chance to correct that choice and serve his country again. Other than his self-authored statement, he submits no evidence in support of his request.

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

He initially entered active duty in February 1987 and successfully completed training prior to being assigned to Germany in August 1987. Just prior to being assigned to Germany the applicant was punished under Article 15 of the Uniform Code of Military Justice (UCMJ) for stealing two packs of cigarettes from the local PX. His punishment included forfeiture, extra duty, restriction, and an oral reprimand.





In 1988, after reporting to Germany, a DA Form 4833 (Commander’s Report of Disciplinary or Administrative Action) indicates the applicant was punished under Article 15 of the UCMJ for stealing a deck of cards from the PX. His punishment was an oral reprimand and forfeiture of pay.

By April 1989 he had been promoted to pay grade E-4. However, in June 1989 he was reduced to pay grade E-3. The basis for the reduction is not recorded in the applicant’s file.

In September 1989 he was reassigned to Fort Knox, Kentucky and in June 1990 he was awarded an Army Good Conduct Medal. In May 1990 he was promoted to pay grade E-4 and reenlisted for a period of 4 years. Included as part of his reenlistment option was a reassignment to Fort Bragg, North Carolina. Orders reassigning him to Fort Bragg were issued on 19 June 1990 and his reporting date was established as 31 December 1990.

The applicant was scheduled to depart Fort Knox enroute to Fort Bragg on
3 December 1990. His records indicate, however, that he was reported as AWOL (absent without leave) between 13 December 1990 and 5 January 1991. He was subsequently placed in civilian confinement and on 12 January 1991 was placed in military confinement.

On 16 April 1991 the applicant was convicted by a general court-martial, in consonance with his pleas, of AWOL, missing movement by design, and making and uttering checks with insufficient funds. His sentence included reduction to pay grade E-1, forfeiture of all pay and allowances, confinement for 120 days, and a bad-conduct discharge.

On 26 September 1991 the United States Army Court of Military Review affirmed his conviction.

The applicant was discharged on 3 March 1992. His DD Form 214 (Certificate of Release or Discharge from Active Duty) reflects an RE Code of “4” and a SPD (Separation Program Designator) Code of JJD.

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 prescribed 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 persons who were separated from their last period of military service with a non-waivable disqualification. This includes anyone previously discharged with a bad-conduct or dishonorable discharge.

Army Regulation 635-5-1 states that SPD Codes are three-character alphabetic combinations, which identify reasons for, and types of separation from active duty. The primary purpose of SPD Codes is to provide statistical accounting of reasons for separation. They are intended exclusively for the internal use of DOD and the military services to assist in the collection and analysis of separation data. It notes that “JJD” is the appropriate SPD Code for individuals separated as a result of a court-martial.

A “cross-reference” chart, provided by officials from the separations branch at the U.S. Total Army Personnel Command, confirms that “RE-4” is the appropriate RE Code for individuals who receive an SPD Code of JJD.

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 that requirement.

2. There is no evidence, and the applicant has not provided any, that he requested release from the military. The Board notes that even with such a request it would not change the basis for which he received an RE-4. Additionally, the Board notes that the applicant’s contention that he “had no choice but to get [her] out of a possible bad situation that would threaten her innocence” is not supported by any evidence in available records, or provided by the applicant. Notwithstanding that fact, the Board concludes that the applicant’s behavior, which resulted in his court-martial and separation, does not appear to







have been related to any personal situation and in any event would not serve as a basis to justify a correction to his record.

3. The Board notes that the RE-4 is consistent with his SPD Code and in this case finds no basis to correct the existing code.

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.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__GDP__ __DSJ___ __REB__ DENY APPLICATION

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

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INDEX

CASE ID	AR2001063686
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020326
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.	100.03
2.
3.
4.
5.
6.