MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 19 DECEMBER 2002
         DOCKET NUMBER: AR2002076582

         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. Deborah L. Brantley		Senior Analyst

The following members, a quorum, were present:

Mr. Raymond V. O'Connor, Jr.		Chairperson
Mr. Stanley Kelley		Member
Mr. Harry B. Oberg		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: The applicant requests that his 1974 Department of Defense Form 214 (Armed Forces of the United States Report of Transfer or Discharge) be corrected to show that he was discharged on 29 January 1974 vice 21 January 1974, that his Reenlistment (RE) Code be changed from RE-2 to RE-1, and that the entry "Early Separation of Oversea Returnee under Chapter 5 Section VII AR 635-200 SPF 411" be stricken from the document. Additionally, the applicant requested, in a separate application to the Board, that "mentions of improper or delinquent behavior" related to an incident for which he was punished under Article 15 of the Uniform Code of Military Justice (UCMJ), be eliminated from his records and that his records be corrected to show that the punishment imposed by the UCMJ action was suspended.

APPLICANT STATES: Regarding his early separation, that he arrived at Fort Buchanan, Puerto Rico 8 days prior to his scheduled separation date and as such was discharged early. He states that at the time soldiers were being returned from overseas early in order to ensure they arrived in time for their separation date in the event there were any travel delays. The applicant notes there were no delays in his travel and that in order to "accommodate" his early arrival he was "unjustly" discharged under the provisions of Army Regulation 635-200, Chapter 5 and given an RE code of 2. He notes that he did not understand the magnitude of the early separation since he "ignored everything about Army regulations." However, he notes that the early discharge has now affected the computation of his military service for retirement purposes and the RE code is affecting his promotion. He states he is currently a member of the Army National Guard. The applicant submits no evidence, beyond his self-authored statement, in support of his request.

In reference to the UCMJ action, the applicant states that charges "initially pressed" against him "were of a court martial nature." However, those charges were never pursued. Instead, the applicant indicated that he signed "an Article 15" and that all of the punishment was suspended. He states that he was never reduced in grade and no funds were taken from his pay account. He states, in effect, that the initial charges should not be recorded in his record and only the "offenses listed in the Article 15 were held." The applicant states he needs this information corrected because he is applying for a teacher's certificate in Florida. The applicant submits no evidence, beyond his self-authored statement, in support of this request.

EVIDENCE OF RECORD: The applicant's military records were extremely limited, however, documents which were available to the Board show:





The applicant enlisted in the Regular Army for a period of 3 years on 30 January 1971.

On 5 July 1972, while the applicant was assigned overseas, his commander notified him of his intention to impose non-judicial punishment "upon you under the provisions of Article 15, UCMJ." According to the Department of Defense Form 2627-1 (Record of Proceedings under Article 15, UCMJ) the applicant's offenses included being "disorderly in a public place" and "assault" on another soldier "a person then…in the execution of military police duties, by hitting him in the face with your fist." No additional charges were indicated, and records available to the Board do not indicate that any "court-martial" charges were ever preferred. The applicant acknowledged in a statement provided by his commander that he had 72 hours in "which to make a decision whether you will accept nonjudicial punishment or demand trial by court-martial." The applicant did not demand trial by court-martial and accepted nonjudicial punishment. His punishment included reduction to pay grade E-3, which was suspended for 60 days, and forfeiture of 120.00 dollars. The applicant did not appeal the punishment. Orders issued by the applicant's command indicated that the forfeiture was ordered.

On 29 November 1973 orders were issued reassigning the applicant from his unit in Germany to the United States Army Transfer Station at Fort Dix, New Jersey for the purpose of separation processing. The orders noted that the applicant's scheduled separation date was 29 January 1974 and that his "availability date" for transportation purposes was 19 January 1974. Those orders were ultimately amended to show that the applicant was assigned to the United States Army Transfer Station at Fort Buchanan, Puerto Rico and that he was to report to the Military Airlift Command Terminal Army Liaison Counter not later than
17 January 1974 for transportation to Puerto Rico.

The applicant's separation document, which he authenticated, indicates the applicant was released from active duty on 21 January 1974 under the provisions of Army Regulation 635-200, Chapter 5, Section VII, which provided for the early separation of soldiers returning from overseas. His RE code was listed as RE-2. The document also notes that the applicant was paid for 33 days of accrued leave.

Section VII, of Chapter 5, of Army Regulation 635-200, in effect at the time, provided for the separation of soldiers for the convenience of the Government to preclude the nonproductive reassignment of soldiers for short periods of time. It noted that unless members of the Regular Army elected to immediately extend their enlistment voluntarily or continue on active duty by reenlisting, then they



would be released from active duty upon arrival in the United States, or area of residence, if upon arrival they had less than 30 days remaining before expiration of their term of enlistment. Such soldiers received a Separation Program Designator (SPD) code of 411 and a RE code of 2. The RE-2 indicated that the soldier, although fully qualified for reenlistment, was released from active duty under the provisions of Chapter 5, Army Regulation 635-200, and did not contemplate reenlistment at the time.

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. While the applicant contends that his release from active duty 8 days shy of his originally scheduled separation date was unjust, he has provided no evidence which substantiates that contention. His separation for the convenience of the government was appropriate, in view of the fact that he had no intention of remaining in an active status by reenlisting. The separation benefited both the individual, who had no desire to remain on active duty, and the government, by reducing expenditures associated with the assignment of individuals who were within days of their scheduled separation. The applicant has provided no evidence that early separation has impacted on his ability to retire from the Army National Guard.

2. The Board also notes that the entries on his separation document regarding the reason and authority for his separation were appropriate, as were his SPD code and his RE code. Neither code is derogatory in nature nor has the applicant shown how the RE-2 has impacted on his promotion status.

3. Records available to the Board do not contain any charges preferred against the applicant as part of a court-martial action. The records do, however, indicate that the applicant could have requested a court-martial in lieu of nonjudicial punishment. The documents available to the Board indicate the applicant was punished under Article 15 of the UCMJ and that only that portion of the punishment associated with the reduction in grade was suspended. Orders contained in records available to the Board indicate that his forfeiture was ordered and not suspended. The Board notes that the applicant's UCMJ action appears appropriate and the applicant has provided no evidence which shows that there was any error or injustice in the action.

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 that would satisfy that requirement.


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

__RVO__ __SK____ __HBO__ DENY APPLICATION

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

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INDEX

CASE ID	AR2002076582
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20021219
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.