MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            9 February 2000                 
	DOCKET NUMBER:   AR1999027419

	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. Joseph A. Adriance		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor Jr.		Chairperson	
	Ms. Deborah S. Jacobs 		Member	
	Ms. Carol Jo Suiter		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:  In effect, that his under other than honorable conditions (UOHC) discharge be upgraded to an honorable discharge (HD); that the narrative reason for his discharge be changed; and that his Reentry Eligibility (RE) code be upgraded from RE-3B to RE-1. 

APPLICANT STATES:  In effect, that he was not aware that his discharge was dishonorable until 1998.  He has been receiving medical benefits from the VA all along and if he had known he had a bad discharge he would have tried to correct it prior to now.  He claims he is not proud of the fact that he did not complete his enlistment but at the time he feared returning to Alaska because he was being held responsible for the murder of an individual by the victim’s family.  He wanted to get as far away as he could from that area and at the time some Army personnel also thought he was responsible for this murder, so he accepted the discharge not knowing that it was UOHC.  He indicates his willingness to take a lie detector test to prove this point.  He also claims to be in good shape and if needed is willing to come back in the service to complete his enlistment.  He concludes by stating that he is aware he was no angel but he did not deserve a UOHC discharge and he should be entitled to receive his benefits.

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

He enlisted in the Regular Army on 31 January 1977 for 3 years.  He completed basic training at Fort Leonard Wood, Missouri and advanced individual training (AIT) at Fort Benning, Georgia.  Upon completion of AIT he was awarded military occupational specialty 11B (Infantryman) and was assigned to Fort Richardson, Alaska for his first permanent duty station.  

The service record shows that the highest rank attained by the applicant while on active duty was private first class/E-3 and documents no acts of valor, significant achievement, or service warranting special recognition.  The record does reflect the applicant had an extensive disciplinary history, which included his acceptance of nonjudicial punishment (NJP), under the provisions of Article 15 of the UCMJ, on at least five separate occasions; and his conviction by summary court-martial.

On 17 May 1977, he accepted NJP for absenting himself from his unit without proper authority and was punished with a suspended forfeiture of $75.00 and 
9 days of restriction and extra duty.  On 22 September 1977, he again accepted NJP, this time for leaving his sentinel post before being properly relieved and was punished by being reduced in rank to private/E-1; forfeiting $87.00; and with 14 days of restriction and extra duty.  On 15 December 1977, he accepted NJP for wrongfully possessing marijuana, which resulted in his being fined $198.00 per month for 2 months.  

On 15 March 1979, the applicant was tried and convicted by summary court-martial of six specifications of failing to be at his prescribed place of duty.  His resultant sentence included a reduction in rank to private/E-1; forfeiture of two-thirds of his pay per month for six months; and confinement at hard labor for a period of 30 days.  

On 4 April 1979, he was assigned to the United States Army Retraining Brigade (USARB) at Fort Riley, Kansas to complete his confinement.  During his assignment to the USARB the applicant accepted the following NJP:  10 April 1979, for being derelict in the performance of his duties;  30 April 1979, for being derelict in the performance of his duties; and 7 May 1979 for failure to obey a lawful order.

The specific facts and circumstances surrounding the events which led to the applicant’s discharge are not contained in the service record; however, the record does contain a properly constituted DD Form 214 ( Report of Separation from Active Duty), signed by the applicant, which identifies the reason for and the characterization of his separation.  This form also documents that the applicant was discharged on 30 May 1979, under the provisions of Chapter 14 of Army Regulation 635-200 for misconduct, after completing 2 years, 3 months, and 
6 days of active service and having had accrued 24 days of time lost.  It also shows that his service was characterized as UOHC and that he received a copy of the form on the date of his 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 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-3 applies to persons not qualified for continued Army service, but the disqualification is waivable.  RE-3B, in effect at the time, indicated that a person had lost time during his last enlistment.

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.  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 under other than honorable conditions characterization of service is normally considered appropriate for members separated under these provisions.

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 noted the applicant’s contentions but found they were not supported by either the evidence of record or the independent evidence submitted by the applicant.  The Board noted that the applicant authenticated his DD Form 214 and was provided a copy of this form at the time he was discharged. 

2.  While the record is void of the specific facts and circumstances concerning the events that led to his discharge from the Army, the record does contain a properly constituted DD Form 214 which was authenticated by the applicant.  This document identifies the reason and characterization of the discharge and the Board presumed government regularity in the discharge process.  This document also verifies that the applicant was aware of the characterization of his service and the type of discharge he received on the date he was separated from active duty.

3.  The evidence of record shows that the command attempted to assist the applicant in performing and conducting himself to Army standards by providing counseling and by the imposition of nonjudicial punishment.  The applicant failed to respond appropriately to these efforts and he was discharged accordingly. Therefore, considering the facts of this case, the Board concluded the type of discharge directed and the reasons therefor were appropriate.  Further, the Board determined that the applicant was assigned an RE code in accordance with regulations in effect at the time and there is no basis to remove it at this time.

4.  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.

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:

__cjs___  ___dsj__    ___rvo__  GRANT

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999027419	
SUFFIX		
RECON		
DATE BOARDED	2000/02/09	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1977/01/31	
DISCHARGE AUTHORITY	AR 635-200 C14	
DISCHARGE REASON	Misconduct	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1. 189	110.0000	
2.		
3.		
4.		
5.		
6.