PROCEEDINGS

           IN THE CASE OF:

	BOARD DATE:           15 February 2001                  
	DOCKET NUMBER:   AR2000048770

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr.	Carl W. S. Chun		Director	
	Mr. 	W. W. Osborn, Jr.		Analyst	

The following members, a quorum, were present:

	Mr.	Fred N. Eichorn 		Chairperson	
	Mr.	Melvin H. Meyer		Member	
	Ms.	Margaret K. Patterson		Member	

	The applicant and counsel if any, did not appear before the Board.

	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)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests reconsideration of his previous application to correct his military records by upgrading his discharge and by changing his re-entry eligibility code (RE) codes so that he can join the Army Reserve. 

3.  The applicant states, in effect, that while in the Army he committed wrongs that he regrets.  He accepted responsibility for his actions at the time and does so today.  Since being discharged, he has made a conscientious effort to improve himself and to be a productive contributing member of society.  He would like to return to the military, but his discharge and his RE codes prevent him from doing so.

4.  The applicant’s counsel contends that the evidence of post-service accomplishments and associated arguments that were submitted in November 1999 should have been accepted as new evidence and argument and been referred to the Board.

5.  The memorandum prepared to reflect the Board’s 28 February 1990 review of the case (AC89-09281) is incorporated herein by reference as if wholly set forth and is summarized as follows.

He enlisted in April 1982, served in Hawaii, and attained pay grade E-4 in May 1983.  He cooperated with a July 1984 Criminal Investigation Division (CID) investigation that showed he had falsely claimed housing allowance payments worth $2202.57.

Charges were filed and the applicant requested discharge for the good of the service (GOS) to avoid trial by court-martial.  The company commander recommended a general discharge, opined that there had been no intent to commit criminal fraud and noted that the applicant had agreed to make restitution and was ahead of the required payment schedule.

The battalion and brigade commanders concurred with the company commander’s recommendation for a general discharge.  However, the separation authority directed discharge under other than honorable conditions (UOTHC) On 15 November 1984 the applicant was so separated and issued re-entry codes of RE-3 and RE3C.

On 30 November 1988 the Army Discharge Review Board (ADRB) denied the applicant’s request to upgrade his discharge.  On 28 February 1990 this Board considered the applicant’s request to upgrade his discharge and change his RE codes along with counsel’s contentions that the separation authority’s action was an abuse of discretion, that the applicant’s overall record of service and post-service history mitigated his offense and that the ADRB decision should be ignored and that the application was timely because it had been filed within 3 years of the ADRB decision.   The Board determined that the subject application had not been submitted within the time required and that the applicant had not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law.

7.  The applicant’s 1 November 1999 request for reconsideration forwarded copies of his California pharmacy license which expires 1 March 2005 and his Curriculum Vitae (CV) indicating that he earned a Doctorate of Pharmacy from the University of the Pacific in 1997.  It also indicates that he completed an industrial training program in electricity and electronics in 1987 and a hotel management training program in 1988.  It shows that he was employed in the hotel industry from 1988 to 1997 while studying pharmacy.  His Army service is also listed.

8.  The application also included a 7 July 1988 letter from an Army Health Care Recruiter indicating that he was sending the applicant an initial application package.

9.  At the time of the November 1999 request, the applicant’s counsel had again contended that the original application had been timely for reconsideration because it had been filed within three years of the ADRB’s decision, that, in the face of the recommendations for a general discharge, the separation authority’s action had been arbitrary and capricious and that the applicant’s post-service history and motivation to serve in the Army Reserve warranted the requested relief.  Counsel contends that the applicant was not granted a waiver of his RE codes.

10.  A telephone call by the analyst to the University of the Pacific confirmed the claimed educational accomplishment.

11.  Army Regulation15-185 sets forth the current policy and procedures for the ABCMR. It provides that, if a request for a reconsideration is received within one year of the prior consideration and the case has not been previously reconsidered, it will be resubmitted to the Board if there is evidence (including but not limited to any facts or arguments as to why relief should be granted) that was not in the record at the time of the Board’s prior consideration.  The staff of the Board is authorized to determine whether or not such evidence had been submitted.  The regulation provides further guidance for reconsideration requests that are received more than 1 year after the Board’s original consideration or after the Board has already reconsidered the case.  In such cases, the staff of the Board will review the request to determine if substantial relevant evidence has been submitted that shows fraud, mistake in law, mathematical miscalculation, manifest error, or if there exists substantial relevant new evidence discovered contemporaneously or within a short time after the Board’s original decision.  If the staff finds such evidence, the case will be resubmitted to the Board.  If no such evidence is found, the application will be returned without action.

12.  Paragraph 2-5 of the regulation states that this Board will not consider an application until the applicant has exhausted all administrative remedies to correct the alleged error or injustice.

CONCLUSIONS:

1.  The post-service documentation was new evidence that should have been referred to the Board in November 1999.

2.  Contentions concerning failure to timely file are moot, because this review is a consideration of all the merits of the case.

3.  There is no available evidence that the applicant has actually applied for and been denied a waiver of his reenlistment codes.  He has not exhausted his administrative remedies and the Board is precluded by regulation from considering the request to change his RE codes.

4.  The separation authority’s action was not an abuse of discretion.  The action taken was fully within that officer’s purview and a UOTHC discharge is normally issued in GOS cases.  Neither was it arbitrary or capricious.  The separation authority had no requirement, responsibility, or obligation to justify the action taken or to explain why the recommendations of the immediate and intermediate commanders were not accepted.

5.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, was administratively correct and in conformance with applicable regulations. There is no indication that the request was made under coercion or duress.  His service was appropriately characterized by the offense for which he requested discharge to avoid trial by court-martial.

6.  Aside from the applicant’s pharmacy licensing, the curriculum vitae is completely unsubstantiated by documentary evidence.  However, in light of the fact that the University of the Pacific confirmed that he earned a Doctorate of Pharmacy, it is accepted as factual.

7.  In light of all the circumstances of the case, especially in light of the fact that the applicant accepts responsibility for his actions, has apparently made restitution and has apparently made substantial educational and vocational progress, the discharge is now too harsh.  A general discharge is considered appropriate and the RE code is appropriate. 

8.  However his overall record of service was without distinguishing merit and the period of service was only about half of his obligated enlistment.  His post-service period accomplishments are noteworthy but they are not so exceptionally meritorious (there is no evidence of significant public service) as to warrant greater relief.

9.  In view of the foregoing findings and conclusions, correcting the applicant’s records as recommended below would rectify an injustice.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing that the applicant was separated on 15 November 1984 with a general discharge under honorable conditions.

2. That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

________  ________  ________  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

__FNE__  __MHM__  __MKP __  DENY APPLICATION

		_     _Fred N. Eichorn        _
		        CHAIRPERSON

INDEX

CASE ID	AR2000048770	
SUFFIX		
RECON	 	
DATE BOARDED	20010215 	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19841115	
DISCHARGE AUTHORITY	AR 635-200, ch10. . . . .  	
DISCHARGE REASON	A70.00	
BOARD DECISION	 GRANT PART	
REVIEW AUTHORITY		
ISSUES         1.	A92.22	
2.	100.03	
3.		
4.		
5.		
6.