MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 20 August 2002
         DOCKET NUMBER: AR2002069289

         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. Deyon D. Battle		Analyst

The following members, a quorum, were present:

Ms. Melinda M. Darby		Chairperson
Mr. Roger W. Able		Member
Mr. Curtis L. Greenway		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 discharge under other than honorable conditions be upgraded to an honorable discharge and that his reason and authority for discharge be changed to “Convenience of the Government”. He further requests that his reentry (RE) code be changed from RE-3 to RE-1 and that his separation program designator (SPD) code be changed accordingly. In support of his application he submits a letter from one of his coworkers dated 30 September 2001; an undated letter from his wife; and an undated letter from his neighbor attesting to his good character and post-service conduct.

APPLICANT STATES: That clemency is warranted because it is an injustice for him to continue to suffer the adverse consequences of a bad discharge. He states that he was immature and had a lot of problems with his wife when he was in the Army. He states that he had a problem controlling his temper; however, since his discharge he has grown up and that he realizes the errors of his ways. He states that he has completed two trade schools and he has been working as a machinist for the past 8 years.

COUNSEL CONTENDS: That relief should be granted in the applicant’s case because he has suffered the effects of a less than honorable discharge for many years. He states that consideration should be given to the fact that the incident leading to the applicant’s discharge involved his use of alcohol and that it may have been directly related to his actions. Counsel states that, as it appears that the applicant may have had a serious problem with alcohol, under current standards he would have received treatment for his condition.

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

On 25 July 1975, he enlisted in the Army in Kansas City, Missouri, for 4 years, in the pay grade of E-1. He successfully completed his training as an armor crewman and on 16 January 1976, he was transferred to Vietnam.

On 1 November 1976, while in Vietnam, nonjudicial punishment (NJP) was imposed against the applicant for being drunk and disorderly in camp. His punishment consisted of a forfeiture of pay.

On 24 November 1976, NJP was imposed against him for knowingly and willfully permitting his motor vehicle to be operated by an individual who was under the influence of an intoxicant. His punishment consisted of a reduction to the pay grade of E-2, a forfeiture of pay and extra duty for 14 days.

Charges were preferred against the applicant on 30 July 1977. He was charged with being disrespectful in language to his superior commissioned officer; offering violence against his superior commissioned officer by grabbing him by the shirt; being disrespectful in language towards his superior noncommissioned officer; assaulting his superior noncommissioned officer by striking him in his face with an open hand; and for wrongfully communicating a threat to kill his superior commissioned officer.

After consulting with counsel, he waived his rights and submitted a request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, in lieu of trial by court-martial.

The appropriate authority approved the request for discharge on 12 September 1977. Accordingly, on 21 September 1977, the applicant was discharged under other than honorable conditions, under the provisions of Army Regulation
635-200, chapter 10, for the good of the service, in lieu of trial by court-martial. He had completed 2 years, 1 month and 27 days of total active service. He was assigned an RE code of RE-3 and a JFS (for the good of the service in lieu of trial by court-martial) SPD code.

On 8 September 1987, the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge.

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 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-3 applies to persons not qualified for continued Army Service, but the disqualification is waivable. Certain persons who have received nonjudicial punishment are so disqualified, as are persons with bars to reenlistment, and those discharged under the provisions of chapters 5, 9, 10, 13, 14, and 16 of Army Regulation 635-200. A waiting period of 2 years from separation is required before a waiver may be submitted.

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, which would tend to jeopardize his rights.

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

3. The Board has noted the contentions of the applicant and his counsel. However, notwithstanding the fact that he may have had an alcohol problem; his request for a chapter 10 discharge, even after appropriate and proper consultation with a military lawyer, tends to show he wished to avoid the trial by court-martial and the punitive discharge that he might have received. Considering the nature of his offenses, it does not appear that his discharge under other than honorable conditions is too harsh.

4. He was separated and assigned a reentry code in accordance with the applicable regulations and his separation program designator code properly reflects the reason for his 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.

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

__mmd__ __rwa___ ___clg___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002069289
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/08/20
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	1997/09/21
DISCHARGE AUTHORITY	AR 635-200, CH 10
DISCHARGE REASON	689
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 716	144.7300
2. 725	144.7600
3.
4.
5.
6.