MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:          16 March 2000                         
	DOCKET NUMBER:  AR1999028453

	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.

	Ms. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Ms. Jennifer L. Prater		Chairperson	
	Mr. Orville W. Troesch Jr.		Member	
	Mr. Christopher J. Prosser		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 his bad conduct discharge (BCD) be upgraded to a fully honorable discharge.  He also requests that the reason be changed to Secretarial Authority and that his reenlistment eligibility (RE) code be changed from RE-4 to RE-3.

APPLICANT STATES:  That he has several certificates of outstanding performance and that he does not believe his overall performance was taken into consideration when he was discharged with a BCD.  Additionally, he states that he took responsibility for his actions because he wanted to make the military a career, however, he was not afforded the opportunity for rehabilitation.  He submits a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), three character reference letters, two letters that were written to him thanking him for his contributions and support in helping make his community a better place, one certificate of training, a certificate of appreciation, and three certificates of achievement. 

COUNSEL STATES:  That the applicant is requesting an upgrade of his discharge based on clemency.  He has provided copies of his military records indicating his many accomplishments and post service documentation of continued service to his community.

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

That on 4 August 1993, he enlisted in the Regular Army for a period of 4 years and training in military occupational specialty 88M (Motor Transport Operator).  He completed basic and advanced individual training and on 11 December 1993, he was assigned to Korea. 

On 9 January 1995, while assigned to Korea the applicant was convicted by a, general court-martial (GCM) of two specifications of larceny of another soldiers property (a Panasonic video recorder, of a value of more than $100.00; a portable compact disc player; 20 compact discs; five Nintendo video games; and two joysticks), of a value of more than $100.00.  He was sentenced to reduction from pay grade E-3 to pay grade E-1, forfeiture of all pay and allowances, to be confined at hard labor for 6 months and to be separated with a BCD.

On 27 February 1995, the convening authority approved the sentence adjudged, except for that part pertaining to the BCD, and ordered that the remaining portions of the sentence be executed.

On 30 May 1995, he was released from confinement and placed on excess leave pending the appellate review of his BCD.  

On 10 May 1995, the United States Army Court of Military Appeals approved the sentence.  The United States Court of Military Review affirmed the findings and approved the sentence.  On 7 December 1995, the appropriate authority ordered the BCD duly executed. 

On 19 January 1996, the applicant was discharged, in absentia, under the provisions of chapter 3, Army Regulation 635-200, with a BCD as a result of court-martial.  He was assigned an RE code of RE-4.  He had completed 
2 years and 21 days of active military service and he had 144 days lost time due to being in confinement.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3, paragraph 3-11, provides that a soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

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 enlisting and processing into the RA and the eligibility for prior service applicants for enlistment.  That chapter includes a list of Armed Forces RE codes and RA RE codes. 

A code of RE-4 applies to persons not qualified for continued Army service.  Those individuals discharged under the provisions of chapter 3, Army Regulation 635-200, as a result of court-martial are disqualified and the disqualification is nonwaiverable.

The statutory authority under which this Board was created (Title 10, United States Code, section 1552, as amended) precludes any action by this Board which would disturb the finality of a court-martial conviction.

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.  Trial by court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.

3.  The Board concluded that even though the applicant received several certificates of appreciation and letters of achievement while on active duty, the quality of his service was not determined to be sufficiently meritorious to warrant an upgrade to the characterization of discharge he is requesting.  Further, his good post service adjustment, while commendable provides no basis for granting clemency.

4.  The applicant was separated and assigned an RE code of RE-4 in accordance 
with regulations then in effect. 

5.  There appears to be no basis for removal or waiver of the disqualification which established the basis for the RE code.  In view of the foregoing, there is no basis for granting the applicant's request.  The assigned RE code was and still is appropriate.

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____  __owt___  __cjp____  DENY APPLICATION

						   Karl F. Schneider
   Director, Army Review Boards Agency

INDEX

CASE ID	AR1999028453	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000316	
TYPE OF DISCHARGE	(BCD)	
DATE OF DISCHARGE	19960119	
DISCHARGE AUTHORITY	AR 635-200, Chapter 3  	
DISCHARGE REASON	Court-Martial	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	A68.00	
2.		
3.		
4.		
5.		
6.