MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           2 October 2003                  
	DOCKET NUMBER:   AR2003084026

	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. G. E. Vandenberg		Analyst	

  The following members, a quorum, were present:

	Ms. Kathleen A. Newman		Chairperson	
	Mr. Lester Echols		Member	
	Mr.  John T. Meixell 		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 separation program designator (SPD) and reentry (RE) code be upgraded.

APPLICANT STATES:  That because he received a general discharge his RE code should be better than it is.

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

He entered active duty on 14 April 1999, completed training, and served as a combat engineer.

On 11 April 2000 he received nonjudicial punishment (NJP), under Article 15, Uniform Code of Military Justice, for willful disobedience of a noncommissioned officer (NCO). 

On 15 February 2001 a summary court found him guilty of failure to go to his appointed place of duty and of willful disobedience of a NCO.  His sentence was for confinement for 14 days, forfeiture of $347.00 and reduction to pay grade E-1.

During an 11 July 2001 counseling session the applicant was notified, in writing, that his company commander intended to commence separation proceedings under Army Regulation 635-200, chapter 14.  The following incidents were noted as justification for this action: three separate incidents of theft of ATM cards (automatic teller machine) from other service members; shoplifting; refusing to do training and report for field duty; and disrespect to senior NCOs and failure to obey lawful orders from his squad leader, platoon sergeant, and first sergeant.

On 13 September 2001 the applicant’s company commander initiated action to separate him for commission of a serious offense.  The offenses cited were: shoplifting (larceny), failure to go to his appointed place of duty, and three incidents of willful disobedience of a lawful order from an NCO.  The company commander recommended that the applicant receive a general discharge.  

On 18 September 2001, after consulting with counsel and being advised of his rights and options, the applicant acknowledged that he was being processed for discharge because of his misconduct.  He acknowledged he had been advised of and understood his rights under the Uniform Code of Military Justice (UCMJ), that he could receive an under other than honorable conditions (UOTHC) discharge which would deprive him of many or all of his benefits as a veteran, that he could expect to experience substantial prejudice in civilian life if he received a general discharge, and that although he could apply for an upgrade there is no automatic upgrading or review of a less than honorable discharge.  He waived his right to have military counsel but submitted a statement on his own behalf.
In his statement he indicated that he had gone into the III Corps Shoppette to buy some cigarettes.  While he was reading a magazine one pack fell on the floor and without thinking about it he picked it up and put it in his pocket.  He states that he was still at the magazine rack when arrested not that he was arrested attempting to leave the store as reported.  He asked to be given a chance to continue in the service.

The discharge authority approved the discharge recommendation on 11 October 2001 directing that he receive a general discharge.

The applicant was discharged on 5 December 2001 for misconduct with an RE code of 3 and SPD of JKQ, misconduct, commission of a serious offense.  His DD Form 214 shows he had 2 years, 6 months, and 3 days of creditable time with 49 days lost.

The Army Discharge Review Board reviewed and denied his case on 17 January 2003.  At that time he was advised that an RE-3 was a waivable bar to reenlistment and if he desired to reenter the service he should contact a recruiter.

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.  Specifically paragraph 14-12c is for a pattern of misconduct, commission of a serious offense, conviction by civil authorities, absence without leave, or other actions that a punitive discharge is authorized under the UCMJ.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

A serious offense is described as any offense punishable by confinement for more than six months or for which a punitive discharge is authorized.

The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for offenses under Article 91, willfully disobeying a lawful order, and Article 121, larceny of property (shoplifting).

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, chapter 3 sets forth basic eligibility for prior service applicants for reenlistment and includes a list of armed forces RE codes.

RE-3 applies to persons not qualified for continued Army service, but the disqualification is waiverable.  Certain persons who have received nonjudicial punishment are so disqualified, as are persons with bars to reenlistment, and those discharged under the provisions of chapters 9, 10, 13, and 14 of Army Regulation 635-200.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record and applicable law and regulations, it is concluded:

1.  The applicant was properly separated and assigned the proper SPD and RE codes in accordance with regulations.

2.  A change in the applicant’s SPD or RE code would require a change in the reason and authority for his separation.  The Board has not found nor has the applicant provided any documentation or arguments warranting changing the reason for his discharge. 

3.  Therefore, there is insufficient evidence to warrant a correction of either his SPD or RE code.  

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 this 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:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__KAN__  ___LE___  __JTM___  DENY APPLICATION

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

INDEX

CASE ID	AR2003084026	
SUFFIX		
RECON		
DATE BOARDED	20031002	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	RE Code	
2.		
3.		
4.		
5.		
6.