MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 6 May 2003
         DOCKET NUMBER: AR2003085965

         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. Fred N. Eichorn		Chairperson
Ms. Lana E. McGlynn		Member
Mr. Larry C. Bergquist		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, that his discharge under other than honorable conditions (UOTHC) be upgraded, that his reentry (RE) code be changed from 4 to 3, and that the authority for his separation be changed from chapter 10 to chapter 14.

APPLICANT STATES: The applicant makes no additional statement. With his application to the Army Discharge Review Board (ADRB), he stated that he served in the Army from 30 September 1992 until 20 July 1998. In April 2002, he was trying to reenlist but had no DD Form 214 (Certificate of Release or Discharge from Active Duty). In trying to obtain a copy, he learned that he was listed as a deserter since 20 November 1998. He made arrangements to go to the Personnel Control Facility at Fort Knox, KY. The noncommissioned officer in charge found the mistake about the absent without leave (AWOL) charge and the charges were dropped. He was told once he got his DD Form 214 he could reenlist. But his DD Form 214 shows he has an RE code of 4, which prevents him from reenlisting. He provides a letter, dated 5 April 2002, from the U. S. Army Armor Center and Fort Knox to his Representative in Congress as supporting evidence.

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

He enlisted in the Regular Army on 30 September 1992. He had continuous service with a reenlistment on 16 May 1995 for 3 years and again on 23 April 1998 for 3 years.

The applicant apparently had accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice on two occasions. The Article 15s are not available.

On 16 October 1998, the applicant pleaded guilty to and was convicted by a special court-martial of breaking restriction on or about 15 July 1998; of being absent from his unit from on or about 25 July until 27 July 1998; of failing to go to his appointed place of duty on or about 21 July 1998; of breaking restriction on or about 22 August 1998; of absenting himself from his unit from on or about 22 until on or about 23 August 1998; and of absenting himself from his unit from on or about 24 August to on or about 19 September 1998.

The applicant was sentenced to be reprimanded, to forfeit $600.00 pay for 3 months, and to confinement for 90 days (confinement in excess of 60 days suspended for 60 days, 27 days of pre-trial confinement to be credited against the sentence of confinement).

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On 19 April 2002, court-martial charges were preferred against the applicant charging him with being AWOL from on or about 23 November 1998 to on or about 16 April 2002.

On or about 19 April 2002, 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 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.

In May 2002, the appropriate authority approved the applicant's request and directed the applicant receive a discharge UOTHC.

On 5 June 2002, 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. His DD Form 214 shows he had completed 6 years, 10 months, and 25 days of creditable active service and had about 1000 days of chargeable lost time. He was given an RE code of 4.

On 26 February 2003, the ADRB voted, in a unanimous decision, to deny the applicant's request to upgrade his discharge or change the reason for his discharge and noted that he was given the proper RE code.

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.

Army Regulation 635-200 states, in pertinent part, that an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the soldier’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate. A general discharge is a separation from the Army under honorable conditions. It is issued to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

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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. Soldiers discharged in lieu of trial by court-martial fall into this category.

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. The Board notes that the applicant last reenlisted on 23 April 1998 for 3 years. His contention that he was, in effect, legitimately separated from the Army on 20 July 1998, is therefore not credible. This is especially so in light of the fact he was court-martialed in October 1998 for offenses committed in July, August, and September 1998.

3. 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. There is no indication that the request was made under coercion or duress. The AWOL charges against him were "dropped" because he elected discharge in lieu of trial by court-martial. When he made that request, he acknowledged that he was admitting guilt to the charge.

4. Since the reason for the applicant's discharge appears to have been proper, there is no error in his RE code.

5. Considering the applicant was AWOL for an extended period of time, it appears that his discharge UOTHC was appropriate. An upgrade of his discharge to neither fully honorable nor to general under honorable conditions is warranted.

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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

__fne___ __lem___ __lcb ___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002078688
SUFFIX
RECON
DATE BOARDED	20030506
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	20020605
DISCHARGE AUTHORITY	AR 635-200, ch 10
DISCHARGE REASON	A70.00
BOARD DECISION	DENY
REVIEW AUTHORITY	Mr. Chun
ISSUES 1.	110.00
2.
3.
4.
5.
6.