MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 17 September 2002
         DOCKET NUMBER: AR2002072938

         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. W. W. Osborn, Jr.		Analyst

The following members, a quorum, were present:

Mr. Elzey J. Arledge		Chairperson
Mr. Thomas B. Redfern		Member
Mr. Karen A. Heinz		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).

---

APPLICANT REQUESTS: The applicant requests upgrade of his discharge and change of his reentry (RE) code so that he can reenlist in the Florida National Guard.

APPLICANT STATES: In effect, that he was young and immature and did not know the adverse impact his request for discharge would have on his life. In support of his request he points out that he has a prior honorable discharge from the Florida Army National Guard.

He writes that he never used drugs. There was never any record of indiscipline until November 1994. His problems were caused by the acting first sergeant while most of the unit was deployed to Saudi Arabia. The discharge was not proper or equitable.

Now, he wants to pursue a career in law enforcement, but the discharge keeps him from doing so. In effect, the members of the Army Discharge Review Board seem to look at this as just a bunch of papers, but he is more than pieces of paper. He is a good person who simply needs a second chance.

In a letter to a Member of Congress, he wrote that his chain of command sent his wife back to the United States because of her high-risk pregnancy and he was supposed to get a hardship discharge. He shared a barracks room with Private O____, who used a lot of marijuana. Following an automobile accident, after they were released from the hospital, they were taken to CID (Criminal Investigation Division) where the roommate apparently made a deal at the applicant's expense. The applicant went to his lawyer who advised him to take a chapter 10 discharge so that he could get out quickly to be with his wife.

He lost not only his rank and an honorable discharge, but now he is also losing out on a career in law enforcement.

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

He served in the Florida Army National Guard from August 1991 to January 1994, where he completed training as a multichannel communications system operator. The applicant enlisted in the Regular Army and entered active duty on 28 January 1994 as a specialist four (E-4) and was stationed in Germany.

On 19 and 27 January 1995, the applicant made sworn statements to CID agents to the effect that he had used marijuana four or five times with his roommate. On 2 February 1995 charges were preferred against the applicant for using marijuana on at least four separate occasions and violating a lawful general regulation by allowing another to operate a vehicle while drunk.

On 18 April 1995, additional charges were preferred against the applicant for two specifications of being absent from his appointed place of duty and operating a motor vehicle while drunk.

The applicant consulted with counsel and voluntarily requested discharge for the good of the service in lieu of trial by court-martial for the above offenses. In his request he admitted to at least one of the charges or a lesser-included offense for which a punitive discharge was authorized under the Uniform Code of Military Justice. He stated that he understood the nature and consequences of the discharge under other than honorable conditions that he might receive and that he would be deprived of all service and Veterans Administration benefits. He also acknowledged that he could expect to encounter substantial prejudice in civilian life because of the discharge, that there was no provision whereby the discharge would automatically be upgraded and that, although he could apply for an upgrade, there was no guarantee that such would be granted.

The immediate and intermediate commanders recommended approval of the applicant's request.

The separation authority approved the applicant's request and directed that a discharge under other than honorable conditions be issued.

On 7 June 1995, the applicant was separated with a discharge under other than honorable conditions. He was assigned a reentry code of RE-3.

The Army Discharge Review Board, following a personal appearance hearing, with counsel, denied the applicant's request to change the character of and reason for the 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, 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.

The Manual for Courts-Martial, Table of Maximum Punishments, shows that a punitive discharge is authorized for offenses of violation of a lawful general regulation, driving while intoxicated and using marijuana.

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. 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 9, 10, 13, and 14 of Army Regulation 635-200.

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. There is no available evidence to substantiate the applicant's contentions that he was not guilty of an offense that could have resulted in a punitive discharge if he had been tried by a court-martial and that he was coerced. In the face of his previous written admissions and sworn statements, his current assertions are unconvincing.

2. 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.

3. Since there appears to be no basis for removal or waiver of that disqualification which established the basis for the RE code there is no basis for changing the RE code Itself.

4. The applicant's assertion of youth and immaturity does not justify an upgrade of his discharge. He had demonstrated the capacity for honorable service by completion of approximately 2½ years of prior Army National Guard service and approximately 10 months of active duty without an offense of record.

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

__EJA___ ___TBR_ KAH________ DENY APPLICATION

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

---

INDEX

CASE ID	AR2002072938
SUFFIX
RECON
DATE BOARDED	20020917
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	19950607
DISCHARGE AUTHORITY	AR635-200, chapter 10 .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY	A70.00
ISSUES 1.	AA92.00
2.
3.
4.
5.
6.