MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:            12 January 2000
	DOCKET NUMBER:   AR1999024659

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Ms. Irene N. Wheelwright		Member	
	Mr. Luther L. Santiful		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)

APPLICANT REQUESTS:  That her report of separation (DD Form 214) be corrected to show that she separated from the service in the pay grade of E-4 with entitlement to pay and allowances in that grade and that she was issued a reentry (RE) code of RE-1.

APPLICANT STATES:  In effect, that the nonjudicial punishment imposed against her was still in a pending status and therefore she should have been paid as an E-4.  In support of her application she submits documents from her legal counsel, copies of her separation documents, and other documents relating to her case.

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

The applicant enlisted on 19 October 1994 for a period of 3 years and training as a corrections specialist.

She continued to serve until she was honorably released from active duty in the pay grade of E-1, due to the completion of required service on 19 November 1997.  She had served 3 years, 1 month, and 1 day of total active service and was held beyond the expiration of her term of service (ETS) for 32 days for the convenience of the government.   She was assigned to the Regional Correction Facility at Fort Knox, Kentucky at the time of her separation and she was issued a RE Code of RE-3. 

Her DD Form 214 also indicates that she was reduced to the pay grade of E-1 on 12 November 1997; however, the instrument of reduction is not present in the available records.  The applicant’s separation orders show that her ETS orders were published on 12 June 1997 for a separation date of 18 October 1997 in the pay grade of E-4.  The orders were subsequently re-published on 13 November 1997 to show that she was to be separated on 19 November 1997 in the pay grade of E-1. 

The documents submitted by the applicant with her application consists of two letters from her military defense counsel which consist of a statement from him stating his assessment of the case against the applicant.  She also provides a copy of the appeal submitted on her behalf by the defense counsel in which he describes the events of the hearing in which nonjudicial punishment was imposed against the applicant, which resulted in her being reduced to the pay grade of E-1.  He asserted his arguments in defense of the applicant and requested that the commander set aside the nonjudicial punishment in its entirety.  The results of his appeal are not present in the available records.

Army Regulation 601-210 provides the policy and provisions for issuance of RE Codes.  It states, in pertinent part, that personnel discharged under the provisions of Army Regulation 635-200 will be issued the appropriate RE Code that applies to the circumstances surrounding their separation from the service.

RE-1 applies to persons completing an initial term of active duty who were fully qualified when last separated.

RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable.  Certain persons who have received nonjudicial punishment or who are not serving in the pay grade of E-4 at the time of separation are also disqualified and must wait for a period of 2 years to apply for a waiver of the disqualification for enlistment.

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 the aforementioned requirement.

2.  The applicant has failed to show through the evidence submitted with her application or the evidence of record that the RE Code she was issued at the time of her separation was incorrect. 

3.  The evidence of record clearly indicates that the applicant was issued the appropriate RE Code indicated by the Department and the applicable regulations in effect at the time of her separation from the service.  Accordingly, there is no basis to change the RE Code at this time.

4.  The applicant’s contention that nonjudicial punishment was unjustly imposed against her is not supported by the evidence submitted by her or the evidence of record.  While the Board does not have the benefit of reviewing the record of proceedings of nonjudicial punishment or the charges/evidence against her, it is aware that if the applicant was innocent of the charges against her, she could have refused nonjudicial punishment and demanded trial by court-martial; whereby she could have asserted her innocence at that time with the assistance of legal counsel.

5.  In the absence of evidence to the contrary, it must be presumed that she was aware of her rights at the time and that she chose not to choose a trial by     court-martial and was willing to accept nonjudicial punishment.  Therefore, in the absence of evidence to the contrary, it must be presumed that nonjudicial punishment was imposed against her in accordance with applicable laws and regulations with no violations of any of the applicant’s rights.
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

___js____  __inw___  ___ls____  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999024659	
SUFFIX		
RECON		
DATE BOARDED	2000/01/12	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  4 	100.0300/re code	
2.  189 	110.0000/corr 214	
3.  277 	126.0000/njp	
4.  307 	129.0500/pay grd	
5.		
6.