MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           29 April l999     
	DOCKET NUMBER:   AR1999017542

	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. Loren G. Harrell		Director	
	Mr. Richard H. Allen		Analyst	

  The following members, a quorum, were present:

	Ms. Ann M. Campbell		Chairperson	
	Mr. Edwin S. Castle		Member	
	Mr. Christopher J. Prosser		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  essence, upgrade of his undesirable discharge (UD) to a fully honorable discharge (HD) and change of his reentry eligibility (RE) code to RE-1, with a corresponding change in the separation program designator (SPD).

APPLICANT STATES:  In essence, that he was young and immature at the time of the incident which led to his discharge.  His record of promotions show that he was a generally good soldier.  Clemency is warranted because it is an injustice for him to suffer the consequences of a bad discharge.  He submits copies of some of his discharge documentation and a determination by the Veterans Administration(VA) that his discharge was under dishonorable conditions for unemployment compensation. 

COUNSEL CONTENDS:  Counsel fully supports the issues raised by the applicant and requests that the Board base it’s final decision on fairness and equity.  

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

He enlisted in the Regular Army on 1 July 1975 for 3 years, at age 17, with the consent of his mother.  He had completed 10 years of formal schooling.  He was trained in military occupational specialty (MOS) 71P (Flight Operations Coordinator), and also completed parachutist training.  He was assigned to Fort Bragg, North Carolina, at the completion of his training, and the highest rank he attained was private first class. 

He was absent without leave (AWOL) from 17 February through 7 April 1976.  Although not a matter of official record, the applicant made a statement in June 1976 that he was charged with this offense, requested discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  This request was approved on 9 June 1976, with a general discharge.  

However, on 27 June 1976, the applicant was charged with the theft of a 
.38 caliber revolver from a Government facility on 12 June 1976.  The applicant consulted with legal counsel, and requested consolidation of this charge with his previous charge of AWOL.  He admitted guilt to the two offenses.  He stated he understood that this request would consolidate the two charges, which could result in a punitive discharge, that the previous approved discharge action could be withdrawn, the general discharge voided and that he could received a UD under other than honorable conditions.  He submitted a statement on his own behalf in which he claimed that he took the revolver for self protection, and intended to return it before the theft was discovered.  

The applicant’s chain of command recommended approval.  His Group commander indicated that he had interviewed the applicant and that “…have found him to be a highly disillusioned, immature young man whose desire to be separated from the service is surpassed only by his ability to stay in trouble.”  He recommended issuance of a UD.

The separation authority agreed, and on 30 June 1976, he approved the request for discharge and directed issuance of a UD.

On 2 July 1976, the applicant was discharged with a UD under the provisions of chapter 10, Army Regulation 635-200, for the good of the service in lieu of trial by court-martial (SPD KFS).  He was credited with 10 months and 11 days active service and he had 51 days lost time due to AWOL.  His assigned RE code was RE-3.  

On 21 November 1976, the VA determined that the applicant’s discharge was under dishonorable conditions for unemployment compensation purposes. 

On 15 January 1979, the Army Discharge Review Board denied the applicant’s request for upgrade of his discharge.  

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 SPD (a computer code established by the Department of Defense for standardizing and monitoring reasons for discharge among the Armed Forces) for this reason for discharge was KFS.  A discharge under other than honorable conditions is normally considered appropriate. However, at the time of the applicant's separation the regulation provided for the issuance of a UD.

Pertinent Army regulation 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 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 Army RE codes.  The respective services also may issue periodic instructions to recruiting personnel for additional restrictions and changes in criteria for reenlistment of former service members, based on the needs of the armed service involved.

RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable.  Certain persons with bars to reenlistment, and those discharged under the provisions of chapters 5, 9, l0, l3, and l4 of Army Regulation 635-200 are assigned an RE-3 code.

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.  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, in this case, has failed to submit evidence that would satisfy the aforementioned requirement.

2.  The Board noted that the applicant met entrance qualification standards to include age.  Despite the opinion of the Group commander, the Board concluded that the applicant was not any less mature than other soldiers of the same age who successfully completed military service.  He had completed his MOS training and training as a parachutist, and served a number of months without recorded indisciplines.  

3.  Even if true, the applicant’s serious misconduct of theft of Government property, especially a revolver, was sufficiently serious to warrant trial by court-martial with award of a punitive discharge and cannot be excused by a claim of immaturity.

4.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

5.  The type of discharge directed and the reasons therefor, to include the SPD,  were appropriate considering all the facts of the case.

6.   The applicant was separated and assigned an RE code in accordance with regulations then in effect.  There appears to be no basis for removal or waiver of that disqualification which established the basis for the RE code.

7.  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

__CHP__  ___ESC_  __AMC___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999017542	
SUFFIX		
RECON		
DATE BOARDED	19990429	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19760702	
DISCHARGE AUTHORITY	AR635-200, C10 	
DISCHARGE REASON	A70.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	144.00	
2.	100.03	
3.	A01.13	
4.	A92.17	
5.	A93.01	
6.	A94.07