MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:



         BOARD DATE: 09 JULY 2002
         DOCKET NUMBER: AR2002071057

         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. Gale J. Thomas		Analyst

The following members, a quorum, were present:

Ms. Joann Langston		Chairperson
Mr. Thomas B. Redfern III		Member
Mr. Roger W. Able		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 records be corrected by changing his Reentry Code, item 27, on his DD Form 214 (Certificate of Release or Discharge from Active Duty).

APPLICANT STATES: That he would like to return to the military, but his current
reentry code doesn’t allow him to reenlist. That he was unjustly processed due to his high profile case, that the punishment of the charges is not consistent with precedence set by 10^th Special Forces Group, and that he was never informed by his lawyer of the significance of his reentry code, and if he had known he would never have agreed to the separation. The applicant submits two letters of recommendation attesting to his character, but provides no evidence or documentation in support of his request.

COUNSEL CONTENDS: Counsel makes no contentions.

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

The applicant initially enlisted in the U.S. Army Reserve on 4 August 1993. He was ordered to active duty on 27 August 1993, and successfully completed basic and advanced individual training and was awarded the military occupational specialty (MOS) 97E (Interrogator). On 26 January 1994 he was released from active duty and transferred to the Individual Ready Reserve (IRR).

On 12 July 1996, he enlisted in the Regular Army for a period of 5 years.

On 13 April 2000, his commander preferred court-martial charges against him
for five specifications of intending to deceive by submitting false official documents and statements to Army Intelligence personnel concerning his issuance and possession of foreign passports, his visits to foreign countries, possessing identification documents in names other than his own, and the ending of a relationship he contends ended in 1992, which in fact continued into 1996. He was charged with two specifications of taking documents marked “Secret Information” from his workplace, and for storing those documents in his personal vehicle. He was also charged with the wrongful possession of anabolic steroids, a schedule III controlled substance.

On 20 April 2000, after consulting with legal counsel, the applicant voluntarily requested separation under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service, in lieu of trial by court-martial. He acknowledged that he was guilty of the charges against him, had been fully advised of his rights and the possible effects of an under other than honorable conditions discharge.

On 26 April 2000, the appropriate separation authority approved his separation, and authorized the issuance of an under other than honorable conditions (UOTHC) discharge and reduction to pay grade E-1.

On 5 May 2000, the applicant was separated with an UOTHC discharge, under the provisions of Army Regulation 635-200, Chapter 10. His DD From 214 indicates he had 3 years, 9 months and 24 days of active service, and was assigned Reentry Code “4”, and a Separation Program Designator Code (SPD) of “KFS.”

Pertinent Army regulations provide that prior to discharge or release from active duty, individuals will be assigned reentry 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 Army Reserve. Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment. That chapter includes a list of armed forces RA codes, including RA RE codes.

RE-4 applies to persons separated with a nonwaivable disqualification, this includes persons separated in pay grade E-2 and below and those separated who are ineligible for reenlistment.

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 “KFS” is the appropriate SPD code for RA soldiers separated in lieu of trial by 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 KFS.

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 at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. A discharge under other than honorable conditions is normally considered appropriate.







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 separation was accomplished in compliance with applicable regulations with no indication of procedural error which would jeopardize his rights.

2. The applicant submits no documentation to substantiate his claim that his punishment was not consistent with precedence set by the 10^th Special Forces Group, or that his lawyer failed to inform him of the significance of his reentry code. He voluntarily requested an administrative discharge rather than risk the consequences of a court-martial, and acknowledged that he was fully advised by his consulting legal counsel of his rights and the possible effects of an UOTHC discharge.

3. In view of the circumstances in this case, the assigned reentry code was and still is appropriate, there is no justification for granting the applicant’s request.

4. 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 to show that there was an error or injustice in this case.

5. 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

__JL____ __TBR __ __RWA__ DENY APPLICATION

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

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INDEX

CASE ID	AR2002071057
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020709
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.	110.00
2.
3.
4.
5.
6.