MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            22 May 2003                  
	DOCKET NUMBER:   AR2003085543

	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. Raymond V. O’Connor, Jr.. 		Chairperson	
	Mr. Stanley Kelley . 		Member	
	Ms. Gail J. Wire		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 his under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge (HD).

APPLICANT STATES:  In effect, that he wants to reenter the Army to support our country before he is too old.  He states that he is currently 35 years old and in good mental health.  He asks that he be given a chance to honor our country.  

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

On 21 September 1987, he enlisted in the Regular Army for 4 years.  The record also confirms that the highest rank he attained while serving on active duty was private/E-2 (PV2), and that during his active duty tenure he earned no individual military awards or decorations.  His record documents no acts of valor, significant achievement, or service warranting special recognition. 

Court-Martial charges were preferred against the applicant on 16 June 1988.  He consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an UOTHC discharge, and of the procedures and rights that were available to him.  Subsequent to this counseling, the applicant voluntarily requested discharge, for the good of the service, in lieu of trial by court-martial.  In his request for discharge, the applicant acknowledged his understanding that he would be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  

The appropriate authority approved the applicant’s request for discharge in lieu of trial by court-martial, and directed that he receive an UOTHC discharge.  On 
1 July 1988, the applicant was discharged accordingly.  

The DD Form 214 issued to the applicant on the date of his separation confirms that he was discharged under the provisions of chapter 10, Army Regulation 
635-200, in lieu of trial by court-martial.  This document also confirms that at the time of his discharge the applicant had completed 9 months and 11 days of creditable active military service.  This document also confirms that the applicant was assigned a reentry (RE) code of RE-3.  

On 8 October 1991, the Army Discharge Review Board found the applicant’s discharge was both proper and equitable, and it denied his request for an upgrade.

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.  A discharge UOTHC is normally considered appropriate.

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 US 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-3 applies to persons not qualified for continued Army service, but the disqualification is waivable.

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 request that his discharge be upgraded in order to allow him to reenter the Army and serve his country.  However, while this is an admirable goal, the Board does not find it is a sufficiently mitigating factor that warrants the requested relief.  

2.  The evidence of record shows the applicant was charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge.  The Board notes that, after consulting with defense counsel, the applicant voluntarily, and in writing, requested separation from the Army in lieu of trial by court-martial.  

3.  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 and that the character of his discharge accurately reflects his overall record of service.  Therefore, the Board concludes that the requested relief is not warranted. 

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.  The applicant is advised that while he received an RE code that indicates he was disqualified from further service, the RE-3 code he was assigned indicates that the disqualification may be waived for reenlistment purposes.  This does not guarantee that he would be allowed to reenlist; however, he should contact a local recruiter to determine if he is eligible to reenlist under the current enlistment criteria.  Those individuals can best advise a former service member as to the needs of the Army at the time, and are required to process waivers of RE codes. 

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

__GW___  __SK___  __RO___  DENY APPLICATION

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

INDEX

CASE ID	AR2003085543	
SUFFIX		
RECON		
DATE BOARDED	2003/05/22	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1988/07/01	
DISCHARGE AUTHORITY	AR 635-200 C10	
DISCHARGE REASON	In lieu of court-martial 	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  189	110.0000	
2.		
3.		
4.		
5.		
6.