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ARMY | BCMR | CY2010 | 20100000003
Original file (20100000003.txt) Auto-classification: Denied

		IN THE CASE OF:	  

		BOARD DATE:  6 July 2010 

		DOCKET NUMBER:  AR20100000003 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests upgrade of his general discharge to an honorable discharge.

2.  The applicant states:

* He got a general under honorable conditions discharge due to a civil conviction in Korea
* The Korean government put him in a Korean correctional facility for charge of false marriage
* He is a U.S. citizen, but the Korean government charged him since he was in Korea until he was 17
* He plans to attend school, but he can’t use his G.I. Bill due to discharge status
* He has tried to return to the Army, but they wouldn’t let him

3.  The applicant provides no additional documents in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 15 June 2000.

2.  On 11 January 2006, the applicant was convicted by the Uijeongbu District Court for sexual intercourse under the pretense of marriage and adultery.  He 


received punishment in the form of confinement for 10 months.  Appellate proceedings were held on 26 May 2006 in which the original punishment was reduced to confinement for six months.

3.  On 27 October 2006, the unit commander notified the applicant of initiation of separation action under the provisions of Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separation), chapter 14, paragraph 14-9, by reason of misconduct - conviction by a civil court in a foreign country.  He was advised of his rights.

4.  The applicant consulted with legal counsel, waived consideration of his case by an administrative separation board, and he did not submit statements in his own behalf.

5.  The unit commander recommended the applicant be separated from the service.  The intermediate commander recommended separation with an under other than honorable conditions (UOTHC) discharge.  The senior intermediate commander recommended separation with a general discharge.

6.  On 8 December 2006, the separation authority directed the applicant be discharged with a general discharge, characterized as under honorable conditions.

7.  The applicant was accordingly discharged on 20 December 2006 under the provisions of Army Regulation 635-200, paragraph 14-9, by reason of misconduct - civil conviction by a foreign tribunal.  He completed 6 years and
19 days of active military service with 166 days of time lost due to confinement.  He was issued a reentry eligibility (RE) code of RE-3.

8.  On 29 October 2008, the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge.

9.  Army Regulation 635-200 set forth the basic authority for the separation of enlisted personnel.  That regulation provides for the elimination of enlisted personnel for misconduct when they are initially convicted by civil authorities, or action taken against them which is tantamount to a finding of guilty, if a punitive discharge would be authorized for the same or a closely related offense under the Manual for Courts-Martial, or the sentence by civil authorities includes confinement of 6 months or more, without regard to suspension or probation.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may 


direct a general discharge if such is merited by the Soldier’s overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

10.  Army Regulation 635-200, paragraph 3-7a, 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.

11.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the U.S. Army Reserve.  Table 3-1 included a list of the RA RE codes:

	a.  RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army.  They are qualified for enlistment if all other criteria are met.

	b.  RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable.  They are ineligible unless a waiver is granted.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention regarding his civil conviction by the Korean government is acknowledged.  However, the applicant’s service record does not indicate that an error or injustice exists in this case.

2.  The applicant contends he plans to attend school, but he is unable to because of his character of discharge.  However, this issue is not sufficiently mitigating to warrant the relief requested.

3.  The applicants also contends he has tried to return to the Army, but they wouldn’t let him.  The applicant’s service record shows he was issued an RE-3 code at the time of his discharge and this disqualification for reentry is waivable under the Army enlistment program.  The Army Board for Correction of Military Records (ABCMR) does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  The applicant is advised that if he 


desires to reenter military service, he should contact a local recruiter who can best advise him on his eligibility for returning to military service.  Those individuals can best advise a former service member as to the needs of the service at the time and are responsible for processing RE code waivers

4.  An under other than honorable conditions discharge was normally appropriate for a Soldier discharged under Army Regulation 635-200, chapter 14 for misconduct.  It appears the separation authority determined that the applicant's overall service did not meet the standards of acceptable conduct and performance of duty to warrant recommendation for an honorable discharge.

5.  After review of the evidence of this case, it is determined that the applicant has not presented sufficient evidence which warrants upgrading his general discharge to an honorable discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  __X_____  ___X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      ___________X____________
               CHAIRPERSON
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20100000003



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ABCMR Record of Proceedings (cont)                                         AR20100000003



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

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