PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           27 September 2001                   
	DOCKET NUMBER:   AR2001060743

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Eric N. Anderson		Member	
	Mr. Thomas E. O’Shaughnessy, Jr.		Member	

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

	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 that his two Army Achievement Medals (AAMs) be added to his records, that his discharge under other than honorable conditions (UOTHC) be upgraded, that his reentry (RE) code be changed, that he be reimbursed the basic allowance for subsistence (BAS) for his six-month temporary duty (TDY) that was collected from him, and that he be paid the TDY monies owed for his February 2000 TDY.

3.  The applicant states that he received his first AAM while in the Army National Guard and the second in February 2000.  These awards are missing from his Enlisted Records Brief and his Military Personnel Records Jacket.  He admits that he misused his government credit card but he paid the bill off.  He used the card to get items for his pregnant girlfriend and health insurance for her.  Had the Army properly paid him what he was due, he would not have had financial problems.  He was upset with his financial and personal problems and said things out of anger to his chain of command.  His lawyer advised him to apply for a chapter 10, which he did.  He was later advised that the intent was not to discharge him from the Army but to get him a restricted fiche Article 15 with a reduction and extra duty and restriction.  He received $1,200.00 in BAS for six months TDY at Fort Huachuca, AZ and Fort Benning, GA.  He received $7.50 per day but was later told he was actually due $24.00 per day.  To date he has not received that money.  After returning from an exercise in February 2000, paperwork was submitted for TDY reimbursement but he never received this money.  Supporting evidence is as listed on the enclosure to the DD Form 149.

4.  The applicant’s military records are not available.  Information contained herein was obtained from alternate sources.

5.  The applicant enlisted in the Army National Guard on 4 December 1996.  Permanent Orders 2-4, Headquarters, 1st Battalion, 11th Field Artillery dated      24 June 1998, awarded the applicant the AAM for the period 12 – 27 June 1998.  He was discharged from the Army National Guard on 31 March 1999 for the purpose of enlisting in the Regular Army.

6.  On 1 April 1999, the applicant enlisted in the Regular Army.  Orders 096-806, Headquarters, U. S. Army Training Center and Fort Jackson, Fort Jackson, SC dated 6 April 1999 assigned the applicant on a permanent change of station to Fort Huachuca, AZ for training in military occupational specialty 96B.  Orders 221-27, U. S. Army Intelligence Center and Fort Huachuca, Fort Huachuca, AZ dated 9 August 1999 assigned the applicant on a permanent change of station to the 507th Infantry Battalion, Fort Benning, GA for airborne training.  Permanent Orders 236-339, Headquarters, U. S. Army Infantry Center, Fort Benning, GA dated 24 August 1999 awarded the applicant the Parachutist Badge.  Orders 256-07, Headquarters, U. S. Army Infantry Center, Fort Benning, GA dated       13 September 1999 assigned the applicant on a permanent change of station to Fort Riley, KS.
7.  On 1 December 1999, the applicant was promoted to Specialist, E-4.

8.  Permanent Orders 065-05, 937th Engineer Group, Fort Riley, KS, dated           5 March 2000 awarded the applicant the AAM 1st oak leaf cluster.

9.  On 24 October 2000, court-martial charges were preferred against the applicant charging him with three specifications of failing to go to his appointed place of duty, one specification of being disrespectful in language towards a noncommissioned officer, one specification of using his government travel card for expenses unrelated to official travel on divers occasions, and one specification of threatening to kill his company commander by stabbing him.

10.  On 1 November 2000, after consulting with legal counsel, the applicant voluntarily requested a discharge under the provisions of Army Regulation     635-200, chapter 10 for the good of the service in lieu of trial by court-martial.  The applicant was advised of the effects of a discharge under other than honorable conditions and that he might be deprived of many or all Army and Veterans Administration benefits.  It appears he submitted no statement in his own behalf.  The request is not available.

11.  The applicant’s battalion and group commanders recommended approval of the applicant’s request with a general discharge.  The installation Staff Judge Advocate (SJA) forwarded the case to the approval authority.  The SJA erroneously stated the battalion and group commanders had recommended a discharge UOTHC.  

12.  The appropriate authority approved the applicant’s request and directed he receive a discharge UOTHC.

13.  On 7 December 2000, the applicant was discharged, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service with a discharge UOTHC.  He had completed a total of 3 years, 8 months, and 27 days of creditable service for pay and had 97 days of lost time (for an unknown reason).  He was given a separation code (SPD) of KFS (voluntary discharge with the narrative reason of in lieu of trial by court-martial) and an RE code of 4.  His Certificate of Release or Discharge from Active Duty, DD Form 214, item 13, lists only the Army Service Ribbon.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt.  A discharge UOTHC is normally considered appropriate.  

15.  Army Regulation 635-5 SPD/RE Code Cross-Reference Table states that when an SPD of KFS is given then the RE code will be 4.

16.  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 U.S. 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-4 applies to persons not qualified for continued Army service and the disqualification is not waivable.  

17.  On 25 July 2001, the Army Discharge Review Board (ADRB) denied the applicant’s request for an upgraded discharge.  Conversation between the ADRB and the Board analyst indicated that the ADRB did note and discuss the discrepancy between the battalion and group commanders’ recommendations and the SJA’s comment.

CONCLUSIONS:

1.  The evidence of record shows that the applicant was awarded the AAM twice and also the Parachutist Badge.  These awards should have been entered on his DD Form 214.

2.  The applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.  By voluntarily making this request the applicant understood that he was pleading guilty to the preferred charges and that he was being discharged in lieu of court-martial (not being offered only an Article 15).  Given the seriousness of the offenses charged, the Board concludes that the type of discharge given was and still is appropriate.

3.  Given the reason for the applicant’s discharge, the RE code given was and still is appropriate.

4.  The applicant provides no evidence to show that he was TDY.  The orders he provided were permanent change of station orders, not TDY orders.  He provides no evidence to show that he was paid $1,200.00 BAS for six months TDY or that he was actually due $24.00 a day instead of $7.50 a day.  He provides no evidence to show he was TDY in February 2000.  Regarding any BAS question, he provides no evidence to show that he was given a statement that mess facilities were not available.  He provides no travel vouchers.  There is insufficient evidence for the Board to consider the issues of BAS or TDY.

5.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by amending the applicant’s DD Form 214 for the period ending           7 December 2000 to add the Army Achievement Medal (1st oak leaf cluster) and the Parachutist Badge.

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

BOARD VOTE:  

__rvo___  __ena___  __teo___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		Raymond V. O’Connor, Jr.
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2001060743	
SUFFIX		
RECON		
DATE BOARDED	20010927	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	20001207	
DISCHARGE AUTHORITY	AR 635-200, ch 10	
DISCHARGE REASON	A70.00	
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.	100.03	
3.	110.04	
4.	128.00	
5.		
6.