MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 13 August 2002
         DOCKET NUMBER: AR2002073220

         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. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Mr. Ted S. Kanamine		Member
Ms. Lana E. McGlynn		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 the rank, birth date, net service, and reentry (RE) code listed on his 25 August 1978 separation document
(DD Form 214) be corrected.

APPLICANT STATES: In effect, that he recently requested a copy of his
DD Form 214 and received a copy of a document that was supposed to be corrected in 1978 and again in 1990, but was not. He claims that the rank, birth date, net service, and RE code listed in the corrected DD Form 214 are still in error. Further, he indicates that the DD Form 214 was corrected, not upgraded as is indicated in the remarks section of the DD Form 214. He states that he went through a decade of Review Boards and traveling panels before the Army finally admitted to making a mistake, and in 1990 the errors were supposed to be corrected. He states that he wants to know what happened between 1978 and 2001, which is more than enough time to correct this fiasco. He indicates that he has lost many jobs because of these mistakes that were made because a unit clerk mixed up his records with those of another soldier. He concludes that he is not looking for revenge or money, he just wants what he earned and what the Army promised him.

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

On 27 August 1975, he enlisted in the Regular Army for 3 years and concurrently entered active duty. He completed basic training at Fort Knox, Kentucky and advanced individual training (AIT) at Fort Polk, Louisiana. Upon completion of AIT he was awarded military occupational specialty (MOS) 11B and he was assigned to Fort Carson, Colorado.

The applicant’s enlistment contract (DD Form 4) lists his date of birth as
2 February 1955 in Item 7 (Date of Birth). Item 18 (Signature of Applicant) contains the applicant’s signature, which certifies that he carefully read the contract, understood its contents, and in effect, that the information contained therein was correct.

The applicant’s Personnel Qualification Record (DA Form 2), which was prepared on 16 June 1978, contains the entry “550202” in Item 52 (Date of Birth). His DA Form 2-1 contains the entry “not recommended for further service (780213) in Item 4 (Assignment Considerations), which confirms he was barred from reenlistment on 13 January 1978.

Item 18 (Promotions and Reductions) of the DA Form 2-1 confirms that the highest grade the applicant attained while serving on active duty was private first class/E-3 (PFC), which he was promoted to on 1 May 1977. It also shows that he was reduced to the rank of private/E-2 (PV2) on 19 May 1977 and to the grade of private/E-1 (PV1) on 27 January 1978.

The record documents no acts of valor, significant achievement, or service warranting special recognition and confirms that the applicant earned no individual awards or decorations while serving on active duty. However, the record does reveal an extensive disciplinary history that includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on six separate occasions.

The applicant accepted NJP on the following six separate occasions on the dates and for the offenses indicated: 2 June 1976, for failure to obey a lawful order and using disrespectful language to a sergeant; 28 September 1976, for disobeying a lawful order; 19 November 1976, for failure to go to his prescribed place of duty on three occasions, and being absent without leave (AWOL); 7 October 1977, for failure to obey a lawful order; 27 January 1978, for leaving his place of duty without authority and disobeying a lawful order; and 10 March 1978, for failure to obey a lawful order on three occasions. The punishment imposed by the
27 January 1978 NJP action included his reduction to PV1.

On 10 January 1978, a Bar to Reenlistment Certificate (DA Form 4126-R) was prepared on the applicant by his unit commander. The commander recommended that the applicant be barred from reenlistment based on his record of NJPs and counseling. The unit commander commented that the applicant had exhibited very poor duty performance. He required constant supervision and had an extremely poor attitude toward his service. He constantly shirked his duties and was apathetic and disinterested.

On 20 April 1978, the applicant’s unit commander notified the applicant that he was initiating action to separate him under the provisions of chapter 14, Army Regulation 635-200, for misconduct. The applicant consulted legal counsel and requested that his case be reviewed by an administrative separation board.

On 15 June 1978, an administrative separation board convened to consider the applicant’s case, with the applicant and his counsel present. The board recommended separation with a general, under honorable conditions discharge (GD).

On 17 August 1978, the Deputy, Staff Judge Advocate, found the board’s findings not legally sufficient. As a result, on 23 August 1978, the applicant’s unit commander recommended that the applicant be issued a GD upon his completing his required service.

On 24 August 1978, the separation authority disapproved the board’s findings and recommendations, and directed the applicant be retained until the expiration of his term of service (ETS). On 25 August 1978, the applicant was discharged with a GD at his ETS after completing a total of 2 years, 11 months, and 29 days of active military service.
On 19 April 1990, the Army Discharge Review Board (ADRB) convened to consider the applicant’s request that his GD be changed to an honorable discharge (HD). The ADRB concluded that the applicant’s discharge was proper, but that the characterization of his service was inequitable based on current standards and voted to change the characterization of the applicant’s discharge to honorable, but it also voted not to change the reason for the discharge.

As a result of the ADRB action, the applicant was issued a new DD Form 214. This document lists his rank as PV1, his date of birth as 2 February 1955, his
RE code as RE-3, and it contains a statement in remarks that indicates that his discharge was upgraded on 19 April 1990, which confirms the ADRB action.

Army Regulation 635-5 prescribes the separation documents which are prepared for individuals upon retirement, discharge, or release from active military service or control of the Army. It establishes standardized policy for preparing and distributing the DD Form 214. It states, in pertinent part, that the rank listed will be the rank and pay grade the member holds on the date of their separation from active duty.

Table 2-3 (Separation Program Designator Code/RE Code Cross Reference Table), Army Regulation 635-5 (Separation Documents) establishes RE Code
3 as the proper reentry code to assign to soldiers separated at the completion of their required service if they are barred from reenlistment.

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 that the rank, date of birth, net service, and RE code listed in his separation document are incorrect and that the statement that his discharge was upgraded is also in error. However, the Board finds insufficient evidence to support these claims.

2. The evidence of record confirms that the applicant was reduced to the rank of PV1 as a result of his acceptance of NJP on 27 January 1978, and that this was the rank he held on the date of his separation. Therefore, the rank and pay grade listed in Item 4a (Rank) and 4b (Pay Grade) of his DD Form 214 are correct.

3. The evidence also verifies that the date of birth listed in Item 5 (Date of Birth) of the applicant’s DD Form 214 is consistent with the one listed in his enlistment contract, personnel qualification records, and in the orders and documents published on him throughout his active duty tenure. Absent independent evidence to the contrary, the Board finds no error in this entry.

4. The Board also concludes that the net service listed in Item 12c (Net Active Service This Period) of the applicant’s DD Form 214 is an accurate computation of the active duty service he performed between 27 August 1975, the date he entered active duty, and 25 August 1978, the date of his separation. Thus, it also finds no error related to his entry.

5. Finally, the RE-3 code entry in Item 27 (Reentry Code) of the applicant’s separation document is correct, and was properly assigned in accordance with applicable regulations based on the applicant being barred from reenlistment at the time of his separation. In addition, the entry in Item 18 (Remarks) that indicates that his discharge was upgraded is a correct entry and accurately captures the ADRB action on this case, and explains the publication of a corrected DD Form 214.

6. 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

7. 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

__FNE__ __ TSK _ _ _LEM __ DENY APPLICATION

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

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INDEX

CASE ID	AR2002073220
SUFFIX
RECON
DATE BOARDED	2002/08/13
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	1978/08/25
DISCHARGE AUTHORITY	AR 635-200
DISCHARGE REASON	ETS
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 1021	100.0000
2.
3.
4.
5.
6.