MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 26 September 2002
         DOCKET NUMBER: AR2002075555

         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. Nancy L. Amos		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O’Connor, Jr.		Chairperson
Mr. Raymond J. Wagner		Member
Ms. Karen Y. Fletcher		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 his separation program designator code (SPD) be changed so he can receive separation pay and that his reentry (RE) code be changed so he can reenlist.

APPLICANT STATES: That, although his discharge was upgraded to fully honorable, he was given no financial compensation. He believes there is an injustice because there were "no minority views" (apparently meaning in his Army Discharge Review Board (ADRB) case). He accepted his punishment and immediate separation but then his life's work was taken and he was turned out in the street with nothing after over 15 years of service. He accepted the discharge on the grounds that he would receive at least some compensation. His son was handicapped and needed him; however, instead of transferring him back to Germany as he requested they kept him at Fort Hood, TX. This does not justify what he did but forms the basis of why he did it. Because of the codes on his Certificate of Release or Discharge from Active Duty, DD Form 214, he is unable to rejoin his comrades in arms in the war on terrorism or perform the duties of a peace officer in the war on drugs. He provides the ADRB packet and a 6 March 2001 letter from the Defense Finance and Accounting Service (which indicates his SPD of JKK does not include an entitlement for separation pay) as supporting evidence.

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

After having had prior service, he enlisted in the Regular Army on 6 May 1988.

A letter dated 12 January 1995 from the Graf-zu-Bentheim School, a school for the blind and visually handicapped of the Foundation and Institute for the Blind in Wuerzburg, Germany, states that the applicant's son had been attending the school since September 1995 as he was suffering from optic atrophy and a considerable developmental retardation. The letter appears to request that the applicant not be transferred to the States as that would mean a disruption in the management of his son's condition. The applicant was reassigned to Fort Hood, TX around June 1996.

A letter dated 29 October 1998 from the Graf-zu-Bentheim School noted that the applicant's phone calls, letters, and occasional visits could not be a substitute for his personal presence and requested the applicant's reassignment to Germany.

The applicant apparently requested a compassionate reassignment to Germany. On 1 January 1999, the unit chaplain requested approval of his request and noted that his presence and interaction with his son was vital. The request was apparently disapproved.

The applicant was promoted to Staff Sergeant, E-6 in military occupational specialty (MOS) 19K (M1 Armor Crewman) on 1 May 1999.
The applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice on 10 August 1999 for wrongfully using marijuana sometime between 18 May and 16 June 1999. His punishment was a reduction to Sergeant, E-5, a forfeiture of $922.00 pay for 2 months, 45 days restriction, and 45 days extra duty. He did not appeal the punishment.

On 20 August 1999, the commander initiated separation action under the provisions of Army Regulation 635-200, paragraph 14-12c for misconduct, commission of a serious offense.

On 27 August 1999, the applicant was advised by consulting counsel of the basis for the contemplated separation action. He waived consideration of his case by a board of officers and waived personal appearance before such a board. He requested consulting counsel. He did not submit statements in his own behalf.

On 8 September 1999, Trial Counsel noted that the separation packet was legally sufficient but that "a one-time use is not much."

On 13 September 1999, the appropriate authority waived rehabilitation efforts, approved the recommendation for separation, and directed the applicant receive a general discharge under honorable conditions.

On 6 October 1999, the applicant was discharged in the pay grade of E-5 under the provisions of Army Regulation 635-200, paragraph 14-12c for misconduct. He had completed a total of 14 years, 3 months, and 2 days of creditable active service and had no lost time. He was given an SPD code of JKK and an RE code of 4.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, convictions by civil authorities, desertion or absence without leave. Paragraph 14-12c is commission of a serious offense. Abuse of illegal drugs is serious misconduct. In pertinent part, it states that a first-time drug offender, grade E-5 - E-9, will be processed for separation upon discovery of a drug offense. Chapter 6 states, in pertinent part, that a soldier may request separation for hardship when separation from the Service will materially affect the care or support of the family by alleviating undue and genuine hardship.

Army Regulation 614-200 governs reporting, selection, and assignment of enlisted personnel. In pertinent part, it provides guidance for use in submitting and processing a request for reassignment due to extreme family problems. It states that a valid MOS and grade authorization at the requested installation/activity nearest the soldier's problem, with a valid requirement (requisition) existing for the soldier's grade and MOS at the desired location, will be the primary consideration of the U. S. Total Army Personnel Command (PERSCOM).

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 U.S. 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 code 4 applies to persons not qualified for continued Army service and the disqualification is nonwaivable. RE code 3 applies to persons not qualified for continued Army service but the disqualification is waivable.

Army Regulation 635-5-1 prescribes the specific authorities, reasons for separating soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It states that SPD JKK is an involuntary discharge under the provisions of Army Regulation 635-200, paragraph 14-12c, misconduct. SPD KDB is a voluntary discharge under the provisions of Army Regulation 635-200, paragraph 6-3a or b, hardship. At the time, the Separation Program Designator Code (SPD)/Reentry (RE) Code Cross Reference Table stated that when the SPD is JKK then RE code 4 will be given. The SPD/RE Cross Reference Table dated March 2001 states that when the SPD is JKK then RE Code 3 will be given.

Army Regulation 635-5, paragraph 2-6c(3) states that PERSCOM may make a correction to the RE code after a soldier has separated. Requests should be submitted to the Commander, PERSCOM, ATTN: TAPC-EPR-P, 200 Stovall Street, Alexandria, VA 22331-0457.

Army Regulation 15-185, the regulation under which this Board operates, states that the Board will not consider any application if it determines that an applicant has not exhausted all available administrative remedies.

The Department of Defense Financial Management Regulation, Volume 7A, chapter 35 states that, among other reasons, service members separated at their own request or enlisted members separated for misconduct are not eligible for separation pay.

On 4 October 2000, the ADRB voted 4 to 1 to upgrade the applicant’s discharge to fully honorable and not change the reason. There were no minority views.

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. 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.

2. For the applicant's information, the ADRB voted in a 4 to 1 decision to upgrade his discharge to fully honorable. The "1" board member who voted against upgrading his discharge was the "minority" member; i.e., he voted against the majority's decision. The fact he provided no minority view presumably meant that, although he believed the applicant's discharge should not be upgraded, he did not feely strongly enough about it to contest the majority's decision.

3. It is not clear what the applicant means when he states that he accepted the discharge on the grounds that he would receive at least some compensation. As an involuntary discharge, he did not have a choice in the matter (unless he is referring to the fact he waived consideration of his case by a board of officers). Nevertheless, he had access to counsel and freely made that decision. It is also noted that he elected not to submit a statement on his own behalf.

4. It is noted that the applicant requested a compassionate discharge; however, when it was disapproved he had the option to request a hardship discharge. It does not appear that he did so. It is not clear how having his compassionate reassignment disapproved could have formed a "basis" for using illegal drugs. In any case, changing his discharge to hardship would not give him the relief he requests. A hardship discharge is a voluntary discharge; soldiers voluntarily discharged are not eligible for separation pay, either.

5. Regarding the RE code, there is no evidence of Government error in this case. The applicant was given the correct RE code of 4 at the time based upon his reason for separation. Current regulatory guidance is that the applicant would have been given an RE code of 3 rather than 4 based upon the reason for his separation. The applicant may apply to PERSCOM for a correction to his RE code based upon current standards. He may also request a waiver to enlist at the same time. If for some reason PERSCOM fails to grant the relief requested, he may reapply to the Board, with the final action taken by PERSCOM as supporting evidence, for reconsideration.

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

__RVO_ __RJW___ ___KYF__ DENY APPLICATION

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

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INDEX

CASE ID	AR2002075555
SUFFIX
RECON
DATE BOARDED	2002/09/26
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	110.02
2.	100.03
3.
4.
5.
6.