MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 21 August 2003
         DOCKET NUMBER: AR2002082349

         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. G. E. Vandenberg		Analyst

The following members, a quorum, were present:

Mr. John N. Slone		Chairperson
Mr. Roger W. Able		Member
Ms. Regan K. Smith		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 discharge and reentry (RE) code be upgraded. His request to add his military occupation specialty (MOS) to his DD Form 214 (Certificate of Release or Discharge from Active Duty) can be administratively accomplished.

APPLICANT STATES: In effect, he was AWOL (absent without leave) first due to problems arising from an accident that destroyed his car and then because his father-in-law passing away which necessitated his going home to the Dominican Republic. He states that he believed that as a new husband, it was his responsibility to support his wife during this time.

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

The applicant entered active duty on 30 September 1999. He completed on site unit training with award of the military occupational specialty (MOS) 13B (Cannon Crewman).

The applicant submits a copy of an accident report that shows he and his wife were involved in an automobile accident on 21 February 2000. There is no documentation of the severity of the accident or any reports of medical care.

Prior to reporting to his first permanent duty station, the applicant went AWOL (absent without leave) on 16 March 2000.

The applicant submits a copy of his father-in-law’s death certificate that shows a date of death of 17 April 2000.

A copy of an airline ticket shows that the applicant flew from Orlando, Florida to Santo Domingo, Dominican Republic on 21 April 2000.

He returned to military control on 16 August 2000.

Court-martial charges were preferred for being AWOL in excess of 30 days and on 25 August 2000, after consulting with counsel and being advised of his rights and options, the applicant submitted a formal request for discharge for the good of the service in lieu of court-martial under the provisions of Army Regulations 635-200, chapter 10. He acknowledged he had been advised of and understood his rights under the Uniform Code of Military Justice, that he was guilty of the stipulated offenses or lesser included charges, that he could receive an under other than honorable conditions (UOTHC) discharge which would deprive him of many or all of his benefits as a veteran, that he could expect to experience substantial prejudice in civilian life if he received an UOTHC discharge, and that there is no automatic upgrading or review of a less than honorable discharge.

The applicant requested and was granted excess leave pending resolution of his request for discharge.

On 3 January 2001 the discharge authority approved the request for discharge and directed that the applicant be released with an Under Other Than Honorable Conditions discharge.

On 24 January 2001 the applicant was separated under the provisions of Army Regulation 635-200, chapter 10 with an RE-4 reentry code. He had 10 months and 22 days of creditable service, 122 days of lost time, and 153 days in excess leave.

The applicant’s DA Form 2-1 (Personnel Qualification Record) shows that the applicant completed AIT on 9 February 2000.

The applicant’s DD Form 214 does not show the applicant’s award of the MOS 13B.

The Discharge Review Board reviewed the applicant's records and denied any relief on 12 November 2002.

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 at Table 3-6. In pertinent part, this table states that RE-4 applies to persons with nonwaivable disqualifications including adverse RE codes including persons who request separation prior to the end of their active duty obligation, those separated in pay grade E-2 and below, and those separated with a Department of the Army imposed bar to reenlistment in effect. Paragraph 3-6 states that RE codes are not upgraded unless they are administratively incorrect when originally issued.

Army Regulation 635-200 sets forth the basic authority for the 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.

The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the UCMJ. A punitive discharge is authorized for offenses under Article 86, for periods of AWOL in excess of 30 days.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record and applicable law and regulations, it is concluded:

1. The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations. His service is appropriately characterized by his overall record.

2. The Board finds that the applicant’s RE code is administratively correct and appropriate. Without a finding of error in the original issuance or a correction of his character or reason for discharge, changing the RE code is not warranted.

3. The Board notes the applicant’s reported family problems, however, these problems were not so exceptional as to mitigate or outweigh the offense that resulted in his discharge, especially in light of the fact that his military record is otherwise devoid of significant service.

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 this 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.

NOTE: ARBA St. Louis will be requested to administratively correct the applicant’s DD Form 214 to show the award of the MOS 13B Cannon Crewman.

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

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INDEX

CASE ID	AR2002082349
SUFFIX
RECON
DATE BOARDED	20030821
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	upgrade
2.
3.
4.
5.
6.