MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 10 October 2002
         DOCKET NUMBER: AR2002072969

         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. Jessie B. Strickland		Analyst

The following members, a quorum, were present:

Mr. Raymond J. Wagner		Chairperson
Mr. Roger W. Able		Member
Mr. John T. Meixell		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 he be issued a more favorable Reentry (RE) Code that will allow him to again enlist in the service of his country.

APPLICANT STATES: In effect, that at the time of his discharge, he was not aware of the significance of a RE Code of “4”. He goes on to state that he did not commit, plan or participate in the crime for which he was charged but he was nevertheless considered as an accomplice because the other two individuals that committed the crime implicated him. He further states that it is his desire to prove that he is worthy, honest and hardworking. He continues by stating that he has been employed with the Government as a firefighter, that he has not been involved in any type of criminal activity, drugs or alcohol and he is an outstanding member of his tribe.

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

He enlisted in Phoenix, Arizona, on 26 August 1999, for a period of 4 years and training as a heavy construction equipment operator. He successfully completed his training at Fort Leonard Wood, Missouri, and was transferred to Fort Rucker, Alabama, where he was advanced to the pay grade of E-2.

On 19 September 2000, charges were preferred against the applicant for three specifications of conspiring to steal government and personal property, three specifications of stealing government and personal property and three specifications of unlawful entry.

On 24 October 2000, after consulting with counsel, the applicant submitted a request for discharge for the good of the service, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. In his request he indicated that he was making the request of his own free will, without coercion from anyone and that he was aware of the implications attached to his request. He also admitted that he was guilty of the charges against him or of lesser included offenses which authorized the imposition of a bad conduct or dishonorable discharge. He acknowledged that he understood that he could receive a discharge under other than honorable conditions and that he might be deprived of all benefits as a result of such a discharge. He further stated that he did not desire rehabilitation or to perform further military service. He also declined to submit a statement or explanation in his own behalf.

The applicant’s chain of command recommended approval of his request and indicated that the applicant was a poor soldier who had failed to respond to counseling, that he required constant supervision, and that he lacked motivation.

The appropriate authority (a major general) approved his request on 15 December 2000 and directed that he be discharged under other than honorable conditions.

Accordingly, he was discharged under other than honorable conditions on 21 December 2000, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. He had served 1 year, 3 months and 26 days of total active service and was issued a RE Code of “4”.

There is no indication in the available records to show that he has applied to the Army Discharge Review Board for an upgrade of his discharge.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of the 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 charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. A condition of submitting such a request is that the individual concerned must admit guilt to the charges against them or of a lesser included offense which authorizes the imposition of a bad conduct or dishonorable discharge and they must indicate that they have been briefed and understand the consequences of such a request as well as the discharge they might receive. 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 processing into the Regular Army and the USAR. Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment. That chapter includes a list of armed forces RE codes and provides that RE-4 applies to persons separated with a non-waivable disqualification.

RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable. 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 voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by courtmartial, was administratively correct and in conformance with applicable regulations.

2. Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances. The applicant was issued the appropriate RE Code at the time of his discharge and the Board finds no basis to direct a change in that code.

3. After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his records. In doing so he admitted guilt to the charges against him. While he may now believe that he made the wrong choice, he should not be allowed to change his mind at this late date, especially considering the seriousness of the charges against him.

4. The Board has noted the applicant’s contentions and finds that they are not sufficiently mitigating to warrant relief when compared to the charges against him and his otherwise undistinguished record of service during a short period of time.

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

___rjw___ ___rwa__ ___jm___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002072969
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/10/10
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	2000/12/21
DISCHARGE AUTHORITY	AR635-200/CH10
DISCHARGE REASON	GD OF SVC
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 689	144.7000/A70.00
2.
3.
4.
5.
6.