MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 2 April 2002
         DOCKET NUMBER: AR2001062002

         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. William Blakely		Analyst

The following members, a quorum, were present:

Mr. Walter T. Morrison		Chairperson
Mr. Curtis L. Greenway		Member
Ms. Regan K. Smith		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 this general, under honorable conditions discharge (GD) be upgraded to an honorable discharge (HD). In addition, in an application to the Army Discharge Review Board (ADRB), dated
5 September 2001, the applicant requested that the narrative reason for his separation be changed to Secretarial Authority and that his reentry (RE) code of RE-3 be changed to a more favorable RE code.

APPLICANT STATES: In effect, that his chain of command was responsible for creating and spreading rumors about his behavior that resulted in his receiving nonjudicial punishment (NJP). He states he complained to the Inspector General (IG) and to his Congressman, however, these complaints only resulted in more unwelcome attention to him by his chain of command. He further states that he was set-up for failure and now requests that the Board correct the injustices he encountered at Fort Leavenworth, Kansas.

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

On 7 June 1995, the applicant entered the Army for a period of 4 years and upon completion of training, he was awarded military occupational specialty (MOS) 71D (Legal Specialist). The highest rank he attained while serving on active duty was specialist/E-4 (SPC/E-4) and he earned the following awards during his active duty tenure: Army Achievement Medal; Army Good Conduct Medal; Army Service Ribbon; National Defense Service Medal; and Marksman Marksmanship Badge (Rifle).

His disciplinary record includes his acceptance of NJP, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on two occasions as follows for the offenses indicated: 23 October 1996, for signing a false official record with the intent to deceive, wrongfully and falsely making use of a Military identification (ID) card, and wrongfully possessing a false military ID card; and
10 February 1998, for four specifications of failing to go to his appointed place of duty. In addition, the applicant was formally counseled by members of his chain of command for the following infractions: reporting late to his appointed place of duty; failure to report to his appointed place of duty; poor duty performance; and disorderly conduct.

On 28 August 1998, the applicant was notified by his unit commander that separation action was being initiated to eliminate him from the Army under the provisions of chapter 14-12b, Army Regulation 635-200, for a pattern of misconduct. The commander stated that the basis for the contemplated separation action was the applicant’s committed acts of misconduct that ranged from serious violations to minor misconduct, all of which were punishable under the UCMJ. The applicant acknowledged receipt of the separation action notification, consulted counsel, and submitted a statement in his own behalf.

The applicant’s statement chronicled the negative and positive aspects of his military service. He stated that affording him the opportunity to serve until his expiration of term of service (ETS) would allow him to become a better citizen and keep his educational benefits. He further stated that, he accepted responsibility for the mistakes he had made in the past. Finally, he stated that if allowed to serve out his enlistment, he would continue to work hard and stay out of trouble.

The separation action was approved by the appropriate separation authority, who directed that the applicant receive a GD, and on 23 December 1998, the applicant was discharged accordingly. At the time of his discharge, he had completed a total of 3 years, 6 months, and 17 days of active military service. The separation document (DD Form 214) issued to the applicant on the date of his discharge confirms that the narrative reason for his discharge was misconduct and that he was issued a reentry code of RE-3 accordingly.

On 14 January 2001, the Army Discharge Review Board determined the applicant’s discharge was proper and equitable and denied his request for a change to the narrative reason for his separation and for an upgrade of the character of his discharge.

Army Regulation 635-5-1 (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. The SPD code of JKA was the appropriate code for the applicant based on the guidance provided in this regulation for soldiers separating under the provisions of Army Regulation
635-200, paragraph 14-12b, misconduct. Additionally, Table 2-3 (SPD/RE Code Cross Reference Table), Army Regulation 635-5 (Separation Documents) establishes RE-3 as the proper reentry code to assign to soldiers separated for this reason.

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. An honorable or general discharge may be awarded; however, an under other than honorable conditions discharge is normally considered appropriate for members separated under these provisions.

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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 contentions, but it finds insufficient evidence to support these claims. The evidence of record confirms that his discharge processing was accomplished in accordance with applicable regulations. In addition, although an under other than honorable conditions discharge is normally considered appropriate for members separated under similar circumstances, he received a GD. Therefore, the Board concludes that his overall record of service was given due consideration and that the character of his discharge accurately reflects the quality of his service.

2. The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case, and 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.

3. In view of the facts of this case, the Board finds that the narrative reason for the applicant’s separation was appropriately assigned based on the authority for his discharge. It further finds that it was proper and equitable at the time and that the applicant has failed to provide evidence that would challenge its validity at this time. Therefore, the Board concludes that there is no basis for changing it at this time.

4. The evidence of record also confirms that the applicant was separated and assigned a reentry code in accordance with applicable regulations then in effect. In view of the circumstances of this case, the assigned reentry eligibility code was and still is appropriate. Therefore, the Board concludes that there is insufficient evidence to support a change to the RE-3 code assigned based on the authority for the applicant’s discharge.

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.

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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

__WTM__ __CLG__ __RKS___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002067114
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/04/02
TYPE OF DISCHARGE	(GD)
DATE OF DISCHARGE	199812 03
DISCHARGE AUTHORITY	AR635-200 . . . . .
DISCHARGE REASON	Pattern of Misconduct
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	144.6750
2.
3.
4.
5.
6.