MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            23 August 2001
	DOCKET NUMBER:   AR2001057701

	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. Carl W. S. Chun		Director	
	Mr. Joseph A. Adriance		Analyst	

  The following members, a quorum, were present:

	Mr. John H. Kern		Chairperson	
	Mr. Thomas Lanyi		Member	
	Ms. Paula Mokulis		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 the Separation Program Designator (SPD) and Reentry (RE) codes assigned to her at the expiration of her term of service (ETS) should be corrected and that she should be provided back pay in the rank of sergeant/E-5 (SGT/E-5) for the period 11 July 2000 through the present. 

APPLICANT STATES:  In effect, that the SPD code of JBK and RE-3 code assigned to her at ETS should be changed to MBK and RE-1 respectively.  She claims that she should not have been discharged under the Lautenburg Amendment, as evidenced by the enclosed letter from a Legal Assistance Officer at Fort Knox, Kentucky.  Counsel prepared this letter to assist the applicant in her effort to reenlist at the time.  In the letter, counsel suggested that the Lautenburg Amendment was a non-issue in the applicant’s reenlistment eligibility and it appeared from Department of the Army guidance that the applicant was fully eligible to reenlist. In support of her application, she provides a copy of a criminal history report from the Texas Department of Public Safety, the letter from counsel, and her separation document (DD Form 214).  

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

She served on active duty in the Regular Army (RA) for 9 years, 3 months, and 
15 days, from 26 March 1991 through 10 October 2000, at which time she was honorably separated. 

The applicant’s record does not contain the specific facts and circumstances pertaining to her reenlistment and separation processing.  However, it does contain a properly constituted DD Form 214, which she authenticated with her signature, which confirms the authority and reason for her discharge.  This document shows that she was honorably discharged under the provisions of chapter 4, Army Regulation 635-200, by reason of ETS.  

The separation document also verifies that on the date of her discharge she held the rank of SGT/E-5 and that was entitled to full involuntary separation pay.  It also confirms that she was assigned an SPD code of JBK and an RE-3 code. 

The Texas Department of Public Safety criminal history report provided by the applicant confirms that on 7 February 1997, she was arrested and charged with assault.  It also verifies that on 20 March 1997, she was convicted of this assault charge. 

The Legal Assistance Officer letter, dated 3 December 1999, was prepared in order to assist the applicant in her efforts to reenlist at the time.  In it counsel opined that after reviewing the applicant’s criminal history report from the Texas Department of Public Safety, which documented her assault conviction, it was clear that if the Lautenberg Amendment was the sole concern the applicant was eligible to reenlist without delay. 

Army Regulation 635-5-1 (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  The SPD code of JBK was the appropriate code for the applicant based on the guidance provided in Army Regulation 635-5-1 for Regular Army soldiers separating under the provisions of chapter 4, Army Regulation 635-200, who were ineligible for, barred from, or otherwise denied reenlistment and who are separated on the completion of their term of service.  Additionally, Table 2-3 (SPD/RE Code Cross Reference Table), 
Army Regulation 635-5 (Separation Documents) establishes RE-3 as the proper reentry code to assign to soldiers separated for this reason.

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 notes the applicant’s contention that her SPD and RE codes should be changed and she should be provided back pay as a SGT/E-5 since 
11 July 2000, because she should not have been discharged under the Lautenburg Amendment.  

2.  The applicant’s record is void of the specific facts and circumstances concerning events that led to her discharge from the Army.  However, the record does contain a properly constituted DD Form 214, which she authenticated with her signature.  This document identifies the authority and reason for her discharge and confirms that she was assigned the proper SPD and RE codes for soldiers separated under these regulatory provisions.  Therefore,  the Board presumes government regularity in the discharge process.

3.  The Board finds no evidentiary basis to support the applicant’s claim that the Lautenburg Amendment was the sole reason for her being denied reenlistment and involuntarily discharged.  The evidence shows that she was assisted by counsel in her reenlistment efforts and that counsel’s position in regard to this issue and its impact on her reenlistment eligibility was known and considered at the time.  Therefore, the Board concludes there is no basis for concluding that this was the determinate factor for her involuntary separation.  

4.  In the absence of information to the contrary, the Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Therefore, the Board concludes relief is not warranted in this case. 

5.  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 this requirement.

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

___JHK__  __TL____  __PM___  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2001057701	
SUFFIX		
RECON		
DATE BOARDED	2001/08/23	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	2000/07/10	
DISCHARGE AUTHORITY	AR 635-200 C4	
DISCHARGE REASON	ETS	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  4	100.0300	
2.		
3.		
4.		
5.		
6.