MEMORANDUM OF CONSIDERATION


                  IN THE CASE OF:
        


                  BOARD DATE: 23 September 2003
                  DOCKET NUMBER: AR2003090566

         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. Jessie B. Strickland		Analyst

The following members, a quorum, were present:

Ms. Jennifer L. Prater		Chairperson
Mr. Arthur A. Omartian		Member
Mr. Patrick H. McGann		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 Reentry (RE) Code be changed from a "4" to a more favorable code.

APPLICANT STATES: That if he had been given an opportunity to explain his situation and provide witnesses, he believes that he would have received an RE Code that would allow him to reenter the Army so he could repay his country and be an asset to the Army.

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

He enlisted in the Regular Army in Beckley, West Virginia, on 25 June 1996 for a period of 3 years and training as a fire support specialist. He completed his training and was transferred to Korea.

On 25 June 1998, while serving in the pay grade of E-4, he reenlisted for a period of 4 years, a selective reenlistment bonus and assignment to Fort Campbell, Kentucky. He completed his tour in Korea and received orders transferring him to Fort Campbell.

The applicant went absent without leave (AWOL) on 17 April 1999 and remained absent until he surrendered to Military Authorities at Fort Knox, Kentucky, on 23 July 1999 and charges were preferred against him for the AWOL offense.

On 2 August 1999, after consulting with counsel, the applicant submitted a request for discharge for the good of the service, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. In his request he indicated that he was making the request of his own free will, without coercion from anyone and that he was aware of the implications attached to his request. He also admitted that he was guilty of the charges against him or of lesser included offenses which authorized the imposition of a bad conduct or dishonorable discharge. He acknowledged that he understood that he could receive a discharge under other than honorable conditions and that he might be deprived of all benefits as a result of such a discharge. He further elected not to submit a statement in his own behalf to be considered by the discharge authority when afforded the opportunity to do so.

The appropriate authority approved his request on 29 May 2000 and directed that he be discharged under other than honorable conditions. The applicant requested and was granted excess leave pending the outcome of his request.

Although the delay is not explained in the available records, he was discharged under other than honorable conditions on 15 September 2000, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. He had served 3 years, 11 months and 14 days of total active service and had 96 days of lost time due to AWOL. He was given a RE Code of 4 and a separation code of "KFS."

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of the 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 charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. A condition of submitting such a request is that the individual concerned must admit guilt to the charges against them or of a lesser included offense which authorizes the imposition of a bad conduct or dishonorable discharge and they must indicate that they have been briefed and understand the consequences of such a request as well as the discharge they might receive. A discharge under other than honorable conditions is normally considered appropriate and there have never been any provisions for an automatic upgrade of such a discharge.

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 processing into the Regular Army and the USAR. Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment. That chapter includes a list of armed forces RE codes.

RE-4 indicates that a person is not qualified for continued Army service by virtue of being separated from the service with a non-waivable disqualification such as a Department of the Army imposed bar to reenlistment or a discharge in lieu of trial by court-martial.

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 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 courtmartial, was administratively correct and in conformance with applicable regulations.

2. Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances. He also was given the appropriate RE Code based on the separation code issued at the time of his separation in accordance with the applicable regulations.

3. After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his records. In doing so he admitted guilt to the charges against him. While he may now believe that he made the wrong choice, he should not be allowed to change his mind at this late date, especially considering the length of his absence and the lack of mitigating circumstances to explain his misconduct.

4. The Board has noted the applicant’s contentions and finds that they are without merit. He was afforded the opportunity to submit matters in his own behalf to be considered with his request for discharge and elected not to do so. While there may have been mitigating circumstances at the time, there is no evidence to show that he made any attempt to seek assistance from his chain of command to resolve his problems or at least offer a reasonable explanation to explain his misconduct.

5. 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.

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

___jlp___ ___ao ___ __pm___ DENY APPLICATION

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

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INDEX

CASE ID	AR2003090566
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2003/09/23
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	2000/09/15
DISCHARGE AUTHORITY	AR635-200
DISCHARGE REASON	Gd of svc
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 689	144.7000/a70.00
2.
3.
4.
5.
6.