MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 19 August 2003
         DOCKET NUMBER: AR2002082320

         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. Joyce A. Wright		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Mr. John T. Meixell		Member
Ms. Margaret V. Thompson		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 undesirable discharge be upgraded to honorable, that his authority and reason for separation be changed to "Convenience of the Government", that his Reentry (RE) Code of "3 & 3B" be changed to RE "1", and that his Separation Program Designator (SPD) Code be changed to a more favorable code.

APPLICANT STATES: That he has chronic and severe back problems from his service in Vietnam. In support of his application, he submits five character reference letters.

EVIDENCE OF RECORD: The applicant's military records show he was inducted on 5 March 1959, as a radio operator. He continued to serve through a series of continuous reenlistments. He served in Vietnam from 5 August 1966 to 4 August 1967. He was promoted to pay grade E-6 effective 18 November 1968.

He was convicted by a special court-martial on 14 April 1970 of failure to go to his appointed place of duty. His sentence consisted of a forfeiture of pay and reprimand.

Item 44 (Time Lost) of his DA Form 20 (Enlisted Qualification Record) shows that the applicant was absent without leave (AWOL) from 18 to 20 December 1972 (2 days).

On 29 January 1974, he was punished under Article 15, Uniform Code of Military Justice (UCMJ), for bribery on three occasions and for violation of a lawful general regulation on three occasions. His punishment consisted of a reduction to the pay grade of E-5 (suspended) and forfeiture of pay.

In October 1974, a DA imposed Qualitative Management Program (QMP) bar to reenlistment was imposed based on the applicant's disciplinary record, below marginal military occupation specialty (MOS) scores, and marginal evaluation reports. The applicant elected to serve out his enlistment and opted for a 12-month extension.

Charges were preferred against the applicant on 20 October 1975, for wrongful possession of marihuana on 26 September 1975.

The applicant's basic request for discharge for the good of the service is unavailable for review. However, his records show that his request was indorsed with recommendations of approval. On 17 November 1975, the separation authority approved the applicant's request and directed that he be furnished an Undesirable Discharge and reduced to the lowest enlisted grade. The applicant was discharged on 20 November 1975. He had a total of 16 years, 6 months, and 15 days of creditable service and had 2 days of lost time due to AWOL. He was issued an RE Code of "RE 3 & 3B" and an SPD Code of "KFS."
The applicant's medical records are unavailable for review by this Board.

The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge on 18 December 1975. The ADRB determined that his discharge was proper and denied his request on 26 January 1977.

The applicant reapplied to the ADRB on 29 January 1979 for an upgrade of his discharge. The ADRB determined that the applicant was properly discharged and denied his request on 13 June 1980.

The five character references letters provided by the applicant attest to his dependability, attitude, leadership, and ability to accomplish any assigned task.

Army Regulation 635-200 sets forth the basic authority for separation of enlisted
personnel. Chapter 10 of that 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 the charges
have been preferred, submit a request for discharge for the good of the service
in lieu of trial by court-martial. A discharge under other than honorable
conditions is normally considered appropriate. However, at the time of the applicant’s separation the regulation provided for the issuance of an undesirable
discharge.

Chapter 5 of that regulation provides the authorization for separation for the convenience of the government. Except as delegated by this
regulation or by special Department of the Army directives, the discharge or release of any enlisted member of the Army for the convenience of the government will be at the Secretary’s discretion.

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 US 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-3 applies to persons not qualified for continued Army service, but the disqualification is waivable. Certain persons who have received nonjudicial
punishment are so disqualified, as are persons with bars to reenlistment, and those discharged under the provisions of chapter 9, 10, 13, 14, and 16 of Army Regulation 635-200.

RE-3B applies to soldiers separated prior to the effective date of this regulation,
but did not meet reentry criteria at the time of separation.
RE-1 applies to persons completing their term of service (ETS) who are considered qualified to reenter the Army.

Army Regulation 635-5-1, in effect at that time, prescribed the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons. The regulation shows that the separation program designator (SPD) "KFS", as shown on the applicant’s DD Form 214, is appropriate for discharge when the narrative reason for discharge is
"in lieu of court martial" and that the authority for discharge under this SPD is "Army Regulation 635-200, chapter 10."

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 contention that his reason and authority should be changed to “Convenience of the Government”. However, separation
under Army Regulation 635-200, chapter 5, was considered a chapter for the convenience of the government at the Secretary's discretion. Therefore, there is no basis to change the applicant’s authority and reason for discharge.

2. 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.

3. The type of discharge directed and the reasons for that separation were appropriate considering all of the facts of the case.

4. The applicant was separated and assigned an SPD Code and RE Code in accordance with regulations. The applicant has also failed to show, through the evidence submitted with his application or the evidence of record, that the SPD Code of "KFS" and RE Codes of RE "3 & 3B" issued to him were incorrect.

5. The Board notes that the applicant contends that he has chronic and severe back problems from his service in Vietnam; however, there is no evidence in the available records, and the applicant has provided no evidence, to support his contention.

6. The Board notes the applicant's character references that attested to his dependability, attitude, leadership, and ability to accomplish any assigned task.
However, this evidence is insufficient to support his request for an upgrade of his undesirable discharge.

7. 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.

8. 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

__fe___ __jm____ __mt___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002082320
SUFFIX
RECON
DATE BOARDED	20030819
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	19751120
DISCHARGE AUTHORITY	AR 635-200, chapter 10
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	360/191
2.
3.
4.
5.
6.