MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 5 June 2003
         DOCKET NUMBER: AR2003087133

         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. William Blakely		Analyst

The following members, a quorum, were present:

Mr. Arthur A. Omartian		Chairperson
Mr. Thomas B. Redfern, III		Member
Ms. Karen A. Heinz		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 general, under honorable conditions discharge (GD) be upgraded to an honorable discharge (HD), and that his reentry (RE) code of RE-3 be changed to RE-1.

APPLICANT STATES: In effect, that his service record is unremarkable and he was not cut out for military service at the time. He states that he was young and immature, and later in life he wished that he could have made the military a career. He claims that at the time of his separation, he had no idea of what impact his GD would have on his civilian life. In the years that followed his discharge, it has caused him great anguish. He states that since his discharge, he has learned to hold down a job for the long term and to take orders without question. He indicates that he has also been able to keep his wife of eight years in love with him by doing the honorable thing. He concludes by commenting that he is not lucky enough to know any Senators or State Representatives that could vouch for him, so he is hoping that his self-authored statement and the years he has lived with the GD will be enough for the Board to support his requested relief.

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

On 24 July 1986, the applicant entered the Army for a period of 2 years. He successfully completed training and was awarded military occupational specialty (MOS) 13M (Multiple Launch Rocket System Crewmember).

The applicant’s record shows that the highest rank he attained while serving on active duty was private first class/E-3 (PFC/E-3). It also shows that during his active duty tenure, he earned the Army Service Ribbon. There are no other acts of valor, significant achievement, or service warranting special recognition documented in his record.

His disciplinary record includes his acceptance of nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on 20 March 1987, for wrongfully and unlawfully making a false statement. He was also formally counseled by members of his chain of command for the following infractions: twice disobeying obeying lawful orders; twice for failing to report to his appointed place of duty; lack of self discipline; and failing to follow instructions.

On 29 October 1987, the applicant was notified of his unit commander’s intent to initiate action to separate him under the provisions of paragraph 14-12b of Army Regulation 635-200, for a pattern of misconduct. The unit commander stated that the basis for the contemplated separation action was the applicant’s record of false swearing, failure to report on several occasions, and his failure to obey orders from superior authorities.

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On 2 November 1987, the applicant consulted with legal counsel. After being advised of the basis for the contemplated separation action and its effects, the rights available to him, and the effect of a waiver of rights; he completed his election of rights. He waived his right to have his case considered by and to personally appear before a board of officers. He also waived his right to be represented by counsel, and he elected not to submit a statement in his own behalf.

On 5 November 1987, the separation action was approved by the appropriate authority, who directed that the applicant receive a GD. On 2 December 1987, the applicant was discharged accordingly. At the time of his separation, he had completed a total of 1 year, 4 months, and 9 days of creditable active military service. The DD Form 214 issued to the applicant on the date of his separation confirms that the authority for his discharge was chapter 14, Army Regulation 635-200 and that he reason for his discharge was misconduct. This document also confirms that he was assigned a Separation Program Designator (SPD) Code of JKM and an RE code of RE-3.

There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statue of limitations.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, convictions by civil authorities, desertion or absence without leave. The regulation specifies that action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. An honorable or general discharge may be awarded; however, an under other than honorable conditions (UOTHC) discharge is normally considered appropriate for members separated under these provisions.

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-1 applies to persons completing their terms of service who are considered fully qualified to reenter the US Army and RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable.

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Army Regulation 635-5-1 (SPD Codes) provides the specific authorities (regulatory or directive), reasons for separating soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It states, in pertinent part, that the SPD code of JKM is the appropriate code to assign to soldiers separating under the provisions of chapter 14, Army Regulation 635-200, by reason of misconduct. Further, the SPD and RE code cross reference table establishes the RE code of RE-3 as the proper reentry code to assign to soldiers separated under this authority and for this reason.

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 contentions for an upgrade of his discharge and change of RE code based on the fact he failed to realize the impact of his discharge on his civilian life and his post service good conduct. However, while the Board acknowledges these factors, it finds they are not sufficiently mitigating to warrant the requested relief.

2. The evidence of record confirms the applicant’s discharge processing was accomplished in accordance with applicable regulations and that the type of discharge directed and the reasons therefore were appropriate considering all the facts of the case. The Board is also satisfied that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.

3. The Board also notes that the applicant was discharged under the provisions of chapter 14, Army Regulation 635-200, by reason of misconduct. As a result, he was properly assigned an RE code of RE-3 in accordance with the applicable regulatory guidance.

4. In view of the circumstances in this case, the Board finds the RE-3 code was appropriately assigned based on the authority and reason for the applicant’s discharge, and the basis for this assignment has not changed. The applicant has failed to show any error related to the RE code assignment and therefore, the Board concludes that is an insufficient evidentiary basis for changing it at this time.

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.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__TBR _KH_ __AO __ DENY APPLICATION

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

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INDEX

CASE ID	AR2003087133
SUFFIX
RECON
DATE BOARDED
TYPE OF DISCHARGE	GD
DATE OF DISCHARGE	19871204
DISCHARGE AUTHORITY	AR 635-200 Chapter 14. . . . .
DISCHARGE REASON	Misconduct
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 626	144.6000
2. 4	100.0300
3.
4.
5.
6.