MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 16 May 2002
         DOCKET NUMBER: AR2001066268

         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. Carolyn G. Wade		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Mr. Roger W. Able		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 narrative reason for discharge be changed to "Convenience of the Government;" that his reenlistment (RE) code be changed to RE-1; and that his corresponding separation program designator be changed. The applicant is also requesting reconsideration of his request to upgrade his under other than honorable conditions (UOTHC) discharge to honorable.

APPLICANT STATES: The applicant again offered no explanation or argument other than he has a prior honorable discharge and has been a good citizen since discharge.

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

He enlisted in the Regular Army on 12 January 1982 for a period of 3 years. Following completion of all training, he was awarded military occupational specialty (MOS) 12B, Combat Engineer.

The applicant served honorably and without incident until 7 July 1997, when he committed the misconduct that resulted in court-martial charges being preferred against him. On 1 October 1997, the applicant was charged with resisting arrest, disorderly conduct, and willfully and wrongfully exposing his nude body in an indecent manner in public view. On 21 October 1997, the applicant was also charged with exposing himself in an indecent manner to public view in the housing area.

On 5 November 1997, after consulting with counsel, the applicant requested discharge under the provisions of chapter 10, Army Regulation 635-200, in lieu of trial by court-martial. In his request, the applicant acknowledged the consequences of being discharged under the provisions of chapter 10, including the possibility of a UOTHC characterization of service.

On 14 November 1997, the appropriate authority approved the applicant's request and directed that he be discharged UOTHC. Accordingly, on 30 December 1997, the applicant was discharged under the provisions of chapter 10, AR 635-200, in lieu of trial by court-martial. He was discharged after completing 15 years, 11 months, and 19 days of active military service. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows his narrative reason for separation as "in lieu of trial by court-martial," his separation program designator (SPD) code as "KFS" and the RE code as "RE-3."

On 15 March 1999, the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge. On 26 May 1999, the ADRB unanimously denied the applicant's request and informed him that he could apply to the ADRB for a personal appearance. On 18 July 2000, the applicant requested a personal appearance hearing before the ADRB traveling panel in Dallas, Texas. On 17 May 2001, the applicant appeared before an ADRB Hearing Examiner and his testimony was videotaped for viewing before the full ADRB. On 22 May 2001, after viewing the videotape, the ADRB voted 3-2 to deny the applicant's request for an upgrade of his characterization of service.

On 14 June 2001, the ABCMR denied the applicant's request to upgrade his characterization of service to honorable and to reinstate his rank to staff sergeant/E-6.

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.

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 United States 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 separated from their last period of service with a waivable disqualification.

Army Regulation 635-5-1, Separation Program Designator (SPD) Codes, then in effect, contained narrative reasons for discharge, the appropriate SPD codes for those narrative reasons, and a cross-reference to the applicable RE code. Soldiers separated for the purpose of "in lieu of trial by court-martial" were issued an SPD code of KFS and an RE code of RE-3.

A “cross-reference” table, provided by officials from the Separations Branch, U.S. Total Army Personnel Command, confirms that RE-3 was the appropriate RE code for individuals who receive an SPD code of KFS and who were discharged "in lieu of trial by court-martial;" however, as of March 2001 the cross-reference table was updated and the appropriate RE code for the narrative reason "in lieu of trial by court-martial" is now a non-waivable RE code of RE-4.

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 applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.

2. The Board carefully reviewed the applicant’s records and determined that his RE code of RE-3 is the appropriate code for his narrative reason for discharge.

3. 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. Furthermore, the applicant has not provided any additional information to support an upgrade of his discharge.

4. The applicant requests a discharge upgrade based upon his successful transition to civilian life and his good post-service conduct. Unfortunately, he provides no evidence in support of his request. He provides no statements from friends, family, or employees; he provides no statements from clergy or his local police department attesting to his character.

5. 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.

6. 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 ___ ____pm__ ____rwa_ DENY APPLICATION

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

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INDEX

CASE ID	AR2001066268
SUFFIX
RECON	20010514
DATE BOARDED	20020516
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	19971230
DISCHARGE AUTHORITY	AR 635-200, chapter 10
DISCHARGE REASON	In lieu of trial by court-martial
BOARD DECISION	DENY
REVIEW AUTHORITY	Director
ISSUES 1.	144.9405
2.
3.
4.
5.
6.