MEMORANDUM OF CONSIDERATION


                  IN THE CASE OF:
        


                  BOARD DATE: 4 November 2003
                  DOCKET NUMBER: AR2003086674

         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. Carolyn Wade		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Ms. Gail J. Wire		Member
Mr. Antonio Uribe		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, an upgrade of his characterization of service, reenlistment (RE) code, and reason for separation.

He also requests that his dates and service times be corrected and that various other errors or injustices on his DD Form 214 (Report of Separation from Active Duty) and in his military record be corrected. However, these requests are not clear and to the point; therefore, the Board has not addressed them.

APPLICANT STATES: In effect, that his DD Form 214 and DA Form 2-1 (Personnel Qualification Record – Part II) have inconsistencies that should be considered an injustice and a basis for granting his request.

In support of his application, he submits three attachments, titled 1Z, 2Y, and 3Z, in which he outlines his request/reasons for the corrections to his records on some issues, but not all.

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

On 17 February 1978, the applicant enlisted in the Regular Army for a period of 3 years and the Area – Station of Choice Enlistment Option (Fort Benjamin Harrison, Indiana). The applicant completed basic combat training (BCT) at Fort Jackson, South Carolina, and started advanced individual training (AIT); however, he never completed AIT.

On 30 April 1978, while still in AIT, the applicant departed his unit in an absent without leave (AWOL) status and remained absent until on/about 1 May 1978. The applicant was returned to his unit and remained with his unit until 12 May 1978 when he once again departed his unit AWOL. On 15 May 1978, the applicant was dropped from the rolls as a deserter. The applicant was in an AWOL status from 15 May 1978 to 20 June 1978 when he was returned to military control. The applicant was again AWOL on 8 July and dropped from the rolls as a deserter on the same day. He remained AWOL until 17 August 1978 when he surrendered to military authorities at Fort Dix, New Jersey.

On 21 August 1978, court-martial charges were preferred against the applicant for 3 specifications of AWOL.

On 23 August 1978, after consulting with legal counsel, the applicant voluntarily requested discharge under the provisions of chapter 10, Army Regulation 635-200 for the good of the service in lieu of trial by court-martial. The applicant was advised of the effects of an under other than honorable conditions discharge and that he might be deprived of many or all Army and Veterans Administration benefits.

On 23 August 1978, the applicant submitted a statement in his own behalf. He stated that he was a good soldier in BCT and AIT and that he deserved better than an under other than honorable conditions discharge. He stated that he went AWOL because of a lack of cooperation from the military concerning military matters, as well as family and financial problems. He also stated that he tried to make things work, but his personal problems just got worse, so he went AWOL to solve them. He concluded by saying that he wanted to get out of the Army, not because of the court-martial charges, but because of the hardships he had encountered since enlisting in the Army.

The applicant’s chain of command recommended approval of the request for discharge under the provisions of chapter 10, Army Regulation 635-200 and the issuance of an under other than honorable conditions discharge.

On 21 September 1978, the appropriate authority approved the applicant’s request for discharge under the provisions of chapter 10, Army Regulation 635-200. He directed that the applicant be furnished DD Form 794A (Discharge Certificate Under Other Than Honorable Conditions) and be reduced to the lowest grade.

Accordingly, on 14 October 1978, the applicant was discharged with an under other than honorable conditions discharge. He was credited with 5 months and 5 days of active military service, 7 days of prior inactive service, for a period of total service of 5 months and 12 days. His DD Form 214 shows 84 days of lost time, 20 days of excess leave, an RE code of RE-3B, and a separation program designator (SPD) code of JFS.

On 23 April 1980, the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge.

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.

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-3B applies to persons not qualified for continued Army service, but the disqualification is waivable. Persons discharged under the provisions of chapter 10 of Army Regulation 635-200 are given RE-3B codes.

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. After consulting with defense counsel, the applicant voluntarily, and in writing, requested separation from the Army in lieu of trial by court-martial. In doing so, the applicant admitted guilt to the stipulated offenses under the UCMJ. The record indicates that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. Additionally, there is no evidence of impropriety or inequity.

3. The applicant’s SPD code, RE code, and reason for discharge are proper and equitable and there is no reason to change them. The applicant was reduced to the lowest grade (private/E-1) by direction of the appropriate authority when he approved the applicant’s request for discharge under chapter 10.

4. The applicant’s three periods of AWOL adversely affected the quality of his service, brought discredit on the Army, and were prejudicial to good order and discipline. These incidents of misconduct clearly diminished the quality of the applicant’s service below that meriting a general or fully honorable discharge.

5. The applicant's discharge was appropriate because the quality of his service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel. The applicant provided no independent, corroborating evidence demonstrating that either the command's action was erroneous or that his service mitigated the misconduct or poor duty performance.

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___ __gjw___ __au____ DENY APPLICATION

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

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INDEX

CASE ID	AR2003086674
SUFFIX
RECON
DATE BOARDED	20030804
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	19780214
DISCHARGE AUTHORITY	AR 635-200, Chap 10. . . . .
DISCHARGE REASON	A70.00
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	110.0200
2.	100.0300
3.
4.
5.
6.