MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 29 May 2003
         DOCKET NUMBER: AR2002083070

         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. Luther L. Santiful		Chairperson
Mr. Lester Echols		Member
Mr. Frank C. Jones		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, correction of appropriate military records to show a reentry (RE) code which would allow reenlistment. In effect, this constitutes a request for removal or waiver of those disqualifications which preclude reenlistment.

APPLICANT STATES: That he understands he made a mistake in the last year before he was discharged, but prior to that incident his record was clean of any type of punishment or wrongdoing. If he were allowed to reenlist, he could be a great soldier and serve his country well. Supporting evidence is as listed on the DD Form 149.

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

That, he enlisted in the Army National Guard on 30 January 1995. He completed basic training and advanced individual training and was awarded the Army Service Ribbon. He was honorably discharged on 7 May 1996 for the purpose of enlisting in the Regular Army on 8 May 1996.

The applicant served in Southwest Asia from 19 September 1996 to 22 January 1997. U. S. Central Command (CENTCOM) awarded him the Army Achievement Medal for meritorious service during his assignment in Dhahran, Saudi Arabia in support of Operation Desert Focus.

The applicant provided a citation showing CENTCOM was awarded the Joint Meritorious Unit Award for the period 1 September 1996 to 6 January 1997 for its response in curbing aggression directed at Kurdish minorities in northern Iraq during Operation Desert Strike.

The applicant was promoted to Specialist, E-4 on 1 December 1997. He was honorably discharged on 11 May 1998 for the purpose of immediately reenlisting on 12 May 1998.

On 16 August 2000, court-martial charges were preferred against the applicant charging him with being absent without leave (AWOL) from the 1st Adjutant General Replacement [Detachment], Camp Coiner, Korea, from on or about 21 October 1999 to on or about 15 August 2000.

On 18 August 2000, after consulting with legal counsel, the applicant voluntarily requested a discharge under the provisions of Army Regulation 635-200, chapter 10 for the good of the service in lieu of trial by court-martial. The applicant was advised of the effects of a discharge under other than honorable conditions (UOTHC) and that he might be deprived of many or all Army and Veterans Administration benefits. He elected not to submit a statement in his own behalf. He was placed on involuntary excess leave.

On 15 February 2001, the appropriate authority approved the applicant's request and directed the applicant receive a discharge UOTHC.

On 9 March 2001, the applicant was discharged with a discharge UOTHC, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, discharge in lieu of trial by court-martial. He had completed 4 years, 3 months, and 20 days of creditable active service and had 300 days of lost time. He was given a separation code of KFS and an RE code of 4.

The applicant apparently separated on temporary records. His DD Form 214 (Certificate of Discharge or Release from Active Duty) fails to show his Army National Guard prior inactive service or his overseas service and fails to show he was awarded the Army Service Ribbon. Item 18 of his DD Form 214 indicates that he did not complete his first full term of service.

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 submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt. A discharge UOTHC is normally considered appropriate.

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 not waivable.

The Separation Program Designator Code (SPD)/Reentry (RE) Code Cross-Reference Table states that when the SPD is KFS then RE code 4 will be given.

Army Regulation 635-5 prescribes the separation documents which are prepared for individuals upon retirement, discharge, or release from active military service. Paragraph 2-4h(18)(b) states that the entry “SOLDIER (HAS) (HAS NOT) COMPLETED FIRST FULL TERM OF SERVICE” is a mandatory entry. This information assists the State in determining eligibility for unemployment compensation entitlement. Paragraph 2-4h(18)(b)1 states that, routinely, a soldier should not be considered to have completed the first full term of active service if separation occurs before the end of the initial contracted period of service. However, if a soldier reenlists before the completion of that period of service, the first term of service is effectively redefined by virtue of the reenlistment contract. Paragraph 2-4h(18)(c) states that, for enlisted soldiers with more than one enlistment period during the time covered by this DD Form 214, “IMMEDIATE REENLISTMENTS THIS PERIOD” (specify dates) will be entered. However, for soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except “Honorable,” then “Continuous Honorable Active Service From” (first day of service for which DD Form 214 was not issued) Until” (date before commencement of current enlistment) will be entered. Then, the specific periods of reenlistments as prescribed above will be entered.

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. In view of the fact the applicant was discharged in lieu of trial by court-martial, the assigned reentry code of 4 was and still is appropriate. The applicant was disqualified from reenlistment and the disqualification is not waivable.

3. The Board notes that there are several administrative errors on the applicant's DD Form 214. He had prior inactive service and foreign service that should be entered in items 12e and 12f of his DD Form 214. He was awarded the Army Service Ribbon while in the Army National Guard. This service award should be administratively added to his DD Form 214. In addition, due to his having reenlisted on 12 May 1998, the period of his first term of service was redefined and he did complete his first term of service. His DD Form 214 should be administratively amended to reflect that fact.

4. The Board is not sure why the applicant provided as supporting evidence the citation awarding CENTCOM the Joint Meritorious Unit Award. However, the Board notes that CENTCOM was awarded this unit award for its service in northern Iraq during Operation Desert Strike. Evidence provided by the applicant shows he served in Saudi Arabia during Operation Desert Focus. There is insufficient evidence to show the applicant is authorized to wear the Joint Meritorious Unit Award.

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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: The Board requests that the Army Review Boards Agency Support Division – St. Louis amend the applicant’s DD Form 214 by adding his prior inactive service, his foreign service; by showing he was awarded the Army Service Ribbon; and to show he completed his first full term of service by amending item 18 to show he had "Continuous Honorable Active Service From” 8 May 1996 Until 11 May 1998" and he had an “IMMEDIATE REENLISTMENT 12 May 1998.”

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__lls___ __le____ _fcj ____ DENY APPLICATION

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

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INDEX

CASE ID	AR2002083070
SUFFIX
RECON
DATE BOARDED	20030529
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY	Mr. Chun
ISSUES 1.	100.03
2.
3.
4.
5.
6.