MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 5 June 2003
         DOCKET NUMBER: AR2002081469

         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
Mrs. Nancy L. Amos		Analyst

The following members, a quorum, were present:

Mr. Arthur A. Omartian		Chairperson
Ms. Karen A. Heinz		Member
Mr. Thomas B. Redfern		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 his separation program designator (SPD) code and his reenlistment (RE) code be changed.

APPLICANT STATES: That he requested a hardship discharge. His wife threatened to kill their daughter. She smothered their daughter with a pillow. Their daughter was then placed in a foster care facility and his wife was placed in an institution. His unit was aware of this but would not consider his request. He is in need of medical benefits from the Department of Veterans Affairs (VA). He provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) as supporting evidence.

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

He enlisted in the Regular Army on 3 December 1981. He completed basic training and advanced individual training and was awarded military occupational specialty 13B (Cannon Crewman). He was assigned to Germany on an unaccompanied tour on or about 8 April 1982.

On 20 August 1982, the company commander initiated separation proceedings on the applicant under the provisions of Army Regulation 635-200, paragraph 5-31, Expeditious Discharge Program (EDP). He cited the applicant’s lack of self-discipline, poor motivation, and inability to adjust to military life. He recommended the applicant be furnished a General Discharge Certificate.

On 1 September 1982, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for disobeying a lawful order to remove the earphones from his head and for using profanity towards a Specialist Four. His punishment was a reduction to pay grade E-1, a forfeiture of $100 pay for one month (suspended for 6 months), extra duty for 14 days, and 14 days restriction. He did not appeal the punishment.

On 1 September 1982, the applicant acknowledged notification of the separation action. The paragraph on the AE Form 113-10-R (Notification of Pending EDP Discharge and Acknowledgment) indicating he voluntarily consented to the discharge is deleted. He elected not to submit a statement in his own behalf.

On an unknown date, the commander forwarded the discharge packet to the approval authority. The commander noted the disciplinary actions taken against the applicant as the one Article 15 and no punishments by court-martial. The commander noted that the applicant had been counseled zero times on his deficiencies.

On an unknown date, the appropriate authority approved the recommendation and directed the applicant be given a general discharge.

On 23 September 1982, the applicant was discharged with a characterization of service of under honorable conditions, (a general discharge) in pay grade E-1, under the provisions of Army Regulation 635-200, paragraph 5-31H(2). He was given an SPD code of JGH (involuntary discharge, failure to maintain acceptable standards for retention, EDP) and an RE code of 3 and 3C. He had completed 9 months and 21 days of creditable active service and had no lost time.

On 11 October 1985, the Army Discharge Review Board voted, in a unanimous decision, not to change the narrative reason for the applicant's discharge. The ADRB noted in part that, despite the applicant's contentions regarding his spouse, they were more persuaded by the divorce decree which awarded his former spouse custody of the child in question. The ADRB also voted, in a 3 to 2 decision, not to upgrade the applicant's discharge to fully honorable.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. At the time, paragraph 5-31 provided that members who completed at least 6 months but less than 36 months of continuous active service on their first enlistment and who demonstrated that they could not or would not meet acceptable standards required of enlisted personnel because of poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally or failed to demonstrate promotion potential could be discharged. It provided for the expeditious elimination of substandard, nonproductive soldiers before board or punitive action became necessary. No member would be discharged under this program unless he/she voluntarily consented to the proposed discharge.

Army Regulation 635-200, chapter 13 (Separation for Unsatisfactory Performance) replaced the Expeditious Discharge Program effective 1 October 1982. Separation under this chapter does not require the member's voluntary consent.

Army Regulation 635-200, chapter 6, states, in pertinent part, that a hardship exists when in circumstances not involving death or disability of a member of the soldier's (or spouse's) immediate family, separation from the Service will materially affect the care or support of the family by alleviating undue and genuine hardship. Supporting evidence is required and will normally be in affidavit form.

Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) provided, at the time, that an individual who was last separated in pay grade E-1 with total active service of 6 months or less was eligible for enlistment.

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 3 applies to persons not qualified for continued Army service but the disqualification is waivable. At the time, RE code 3C applied to persons who did not meet the reentry grade and service criteria of Army Regulation 601-210.

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. There is no evidence to show that the applicant submitted a request for a hardship discharge and the Board concludes that there is insufficient evidence to show he met the criteria for a hardship discharge.

3. The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights. The Board notes that the applicant was discharged shortly before the EDP was superseded by procedures for separating members for unsatisfactory performance. In the absence of evidence to the contrary, the Board presumes that the requirement to have a member voluntarily consent to discharge under the EDP was dropped to conform to the soon-to-be effective new procedures for separation for unsatisfactory performance (which do not require voluntary consent). Therefore, he was given the correct SPD.

4. The applicant separated in the grade of E-1 after completing over 9 months of active service. He was not eligible to reenlist without a waiver due to his separation grade and therefore was properly given an RE code of 3C. He was properly given an RE code of 3 due to being involuntarily discharged.

5. The Board notes that even if the applicant had been given a hardship discharge, he would still have been given an RE code of 3C due to his separation grade. He would still have been given an RE code of 3 due to being given a hardship discharge (not being eligible to reenlist until he could document that the hardship was over).

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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

__ao___ ___kh___ ___tr__ DENY APPLICATION

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

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INDEX

CASE ID	AR2002081469
SUFFIX
RECON
DATE BOARDED	20030605
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	110.02
2.
3.
4.
5.
6.