MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 21 August 2003
         DOCKET NUMBER: AR2003090936

         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. Luis Almodova		Analyst

The following members, a quorum, were present:

Mr. John N. Sloan		Chairperson
Mr. Roger W. Able		Member
Ms. Regan K. Smith		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 undesirable discharge be upgraded to a fully honorable discharge, that his reenlistment code be changed to RE (Reenlistment Eligibility) Code 1 and that the reason for his discharge be changed to, "for the convenience of the Government."

APPLICANT STATES: In effect, that his ability to serve was impaired by his youth and immaturity. He married at a very young age. He was unable to support his wife and child on the income he was receiving before enlisting in the Army; therefore, he joined the service to better their standard of living.

When he was discussing the possibility of his joining the Army, his recruiter told him his family could join him once he completed his basic training. He also stated that the Army would pay for his family to move to his duty station. He was only 18 years old. The responsibility of supporting a wife and child at that age was awesome. He states that he was too young to be able to realize that down the road, the sacrifices his family and he made over the short term could benefit them in the future. Maturity, he says, comes with age and experience.

The applicant states that he went AWOL (absent without leave) to be with his family. He realizes that he did wrong but wants the Board to understand that he was only 18 years of age. He adds that the fact that he had a family at that young age does not mean that he was mature. He asks that the Board consider his age at the time he entered the service and the expectations he had that his family would be joining him once he completed basic training.

In support of his application, the applicant submits a copy of his DD Form 214, Report of Separation from Active Duty, a one-page self-authored issues list with reasons why his discharge should be upgraded to honorable, and a collection of documents normally found in a service member's personnel records.

In addition, he provided four letters of reference, two letters of recommendation, two letters of appreciation, and a performance evaluation summary. In these letters of recommendation, letters of appreciation, and in the civilian performance evaluation summary, the applicant's friends, associates, and supervisor wrote about the applicant's high character, honesty, and trustworthiness; high moral standards; his down-home values and good work ethics; and his being an outstanding neighbor and friend.

EVIDENCE OF RECORD: The applicant's official military personnel records were not available; therefore, information herein was obtained from reconstructed personnel records that were provided by the applicant. All the documents related to the applicant's request for discharge from the Army were not available for the Board's review.

The records show that the applicant enlisted on 26 February 1973, when he was 19 years and 2 months of age. He enlisted for 3 years, in the Regular Army, for a special unit enlistment option, 4th Infantry Division and Fort Carson, Colorado, and on-the-job training in the military occupational specialty (MOS) 52A, Powerman.

Following completion of basic combat training at Fort Knox, Kentucky, and based on his demonstrated outstanding soldierly qualities, he was given an accelerated advancement to Private, pay grade E-2, on 3 May 1973. He was sent to Fort Carson, Colorado, to undergo on-the-job training.

On 4 June 1973, the applicant departed AWOL from his unit, Company C, 4th Engineer Battalion, 4th Infantry Division (Mechanized). He remained absent and on 2 July 1973, he was dropped from the rolls of his organization.

On 23 July 1973, the applicant surrendered to civil authorities and was returned to military control at the Central Military Police Station, Redstone Arsenal, Alabama.

On 8 August 1973, the applicant received nonjudicial punishment under Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL from 4 June 1973 until 23 July 1973. The imposed punishment was as follows: "To be reduced to PV1, E1, suspended for 2 months (Ends 8 October 1973); to forfeit $71.00, suspended for two months (Ends 8 October 1973); to be restricted to the limits of Fort Carson for 14 days; and to perform extra duty for 14 days." The applicant did not appeal the punishment.

On 23 August 1973, the applicant departed AWOL from his unit of assignment, the US Army Personnel Control Facility, US Army Garrison, Fort Carson, Colorado. The applicant was dropped from the rolls of this organization on 23 August 1973. The applicant remained AWOL and on 12 February 1974 he returned to military control at Fort Campbell, Kentucky, and was assigned to the Personnel Control Facility at that location.

On 5 March 1974, the applicant departed AWOL from Fort Campbell and was dropped from the rolls of that organization on the same date. The applicant surrendered to military police on 23 June 1975 at Redstone Arsenal, Alabama.

Court-martial charges were brought against the applicant on 10 July 1975 for the above absence. The commander recommended that he be tried by special court martial empowered to adjudge a bad conduct discharge.

On 10 July 1975, the applicant requested discharge for the good of the service under the provisions of AR 635-200, chapter 10. The applicant's chain of command recommended approval and further recommended that an undesirable discharge be issued.

On 18 July 1975, the approval authority, a major general, approved the applicant's request for discharge for the good of the service under the provisions of AR 635-200, chapter 10. The approval authority directed that an undesirable discharge be issued.

The applicant was discharged on 20 August 1975 in the rank and pay grade, Private, E-1, under the provisions of AR 635-200, chapter 10, for the good of the service. His service was characterized as under conditions other than honorable and he was provided an undesirable discharge certificate. The applicant was assigned reenlistment eligibility codes of 3 and 3B. On the date of his discharge, he had 6 months and 27 days active Federal service with 697 days lost time.

The applicant’s records show that the highest permanent rank and pay grade that he held on active duty was Private, E-2. The record contains no documentary evidence of acts of valor; achievement, other than the accelerated advancement to Private, E-2; which warrants special recognition.

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

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, at any time after the charges have been preferred, a request for discharge for the good of the service, in lieu of trial by court-martial. In doing so, the applicant admits guilt to the stipulated offenses under the UCMJ. A discharge under conditions other than honorable is normally considered appropriate.

Army Regulation 635-200, paragraph 3-7, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member’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. Whenever there is doubt, it is to be resolved in favor of the individual.

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.

The code, RE-1, applies to persons completing their term of active service who are considered fully qualified for immediate reenlistment in the US Army provided that all other criteria are met. The code, RE-3, applies to persons who are not eligible for reenlistment unless a waiver is granted. Code 3B applies to persons who are not eligible for reenlistment unless a waiver is granted by the commander concerned. This code, code 3B, is only applicable to enlisted persons classified ineligible for reenlistment under table 2-5, AR 601-210, because of time lost during their last period of service.

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 considered the applicant’s contentions in his self-authored issues list, which contains the applicant's reasons why his discharge should be upgraded to honorable.

2. There is no evidence that the applicant was promised anything besides assignment to the 4th Infantry Division and Fort Carson, Colorado, and
on-the-job training in the MOS 52A.

3. The evidence of record shows the applicant was charged with the commission of an offense punishable with a punitive discharge under the UCMJ.

4. The Board noted that the applicant voluntarily, and in writing, requested separation from the Army under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid the possibility of a punitive discharge and having a felony conviction on his records. In connection with such a discharge, procedurally, the applicant was required to consult with defense counsel, and to voluntarily, and in writing, request separation from the Army. In doing so, the applicant admitted guilt to the stipulated offenses under the UCMJ. There is no indication that the request was made under coercion or duress. While the applicant may now believe that he made the wrong choice, he should not be allowed to change his mind at this late date.

5. The Board noted that the applicant was assigned the appropriate RE Code based on the regulatory guidance for soldiers separating under the provisions of AR 635-200, chapter 10, for the good of the service, and that the characterization of service for this type of discharge is normally under conditions other than honorable. The Board believes that the applicant was aware of that before requesting discharge.

6. The Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

7. The applicant had a total of 697 days lost time due to AWOL. Because he had this lost time, he was assigned an RE Code of 3B. The applicant was not eligible for immediate reenlist without a waiver due to this lost time, therefore he was also assigned the RE Code 3. In view of all the circumstances in this case, there is no basis upon which a change of the RE Code on the applicant's DD Form 214, can be supported. He is therefore not entitled to a change or removal of his assigned RE Codes.

8. The Board is convinced that the reason for discharge and the characterization of service were both proper and equitable. Further, the Board has determined that the quality of his service did not meet the standards of acceptable conduct and performance expected of Army personnel; therefore, the applicant is not entitled to an upgrade of his Under Conditions Other Than Honorable Discharge to an Honorable Discharge.

9. The Board considered the applicant’s entire record of service. There is no record or documentary evidence of acts of valor, achievement, or service that would warrant special recognition.

10. 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.

11. The applicant enlisted in the Army at the age of 19 years and 2 months, and not at 18 years, as he contends. He has provided no evidence that his age or level of maturity impaired his ability to be a good soldier or that he was any less mature than other soldiers of the same age who successfully served their country and successfully completed their military service obligation. The evidence of records, on the contrary, shows that he had the ability to be an outstanding soldier based on his accelerated advancement to the rank and pay grade Private, E-2, after completing basic combat training.

12. Finally, the Board noted the comments made in the letters of recommendation, letters of appreciation, and in the performance evaluation summary about the applicant's high character, honesty, and trustworthiness; high moral standards; his down-home values and good work ethics; and his being an outstanding neighbor and friend by the applicant's friends, associates, and supervisor, submitted by the applicant for the Board's consideration; however, it finds these are not sufficiently mitigating to cause an upgrade of the applicant's discharge.

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13. 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

___js____ ___rks __ __rwa___ DENY APPLICATION

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

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INDEX

CASE ID	AR2003090936
SUFFIX
RECON
DATE BOARDED	2003/08/21
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	19750820
DISCHARGE AUTHORITY	AR 635-200, chapter 10
DISCHARGE REASON	For the good of the service.
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 360	144.0000
2. 394	144.0133 /A01.33
3.
4.
5.
6.