MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:            22 July 1999      
	DOCKET NUMBER:   AR1999020804

	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	
	Ms. Wanda L. Waller		Analyst	

  The following members, a quorum, were present:

	Mr. Calvin M. Fowler		Chairperson	
	Mr. Thomas N. Kuhn		Member	
	Mr. Raymond J. Wagner		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 discharge under other than honorable conditions be upgraded and that his separation code, reenlistment code and narrative reason for separation be changed.  He also requests that items 18 (Remarks) and 29 (Dates of Time Lost During this Period) on his DD Form 214 (Report of Transfer or Discharge) be corrected.      

APPLICANT STATES:  In effect, that his head injury (concussion and headaches) is service-connected.  

COUNSEL CONTENDS:  The applicant is represented by Mr. Hugh F. “Trey” Dally, Attorney at Law, of the Legal Aid Society of Cincinnati, Ohio.  Counsel submitted a psychological evaluation of the applicant conducted on 31 March 1998.  In summary, the psychologist concluded that the applicant currently experiences post-traumatic stress disorder, subsequent to a sexual assault while in the military and that his discharge was directly related to the assault and the subsequent post-traumatic stress disorder.  The psychologist also concluded that “were it not for the assault, he would not have decompensated and become a discipline problem for the Army.  There is no suggestion or support that his behavior would have resulted in anything other than an honorable discharge upon the conclusion of his military obligation”.

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

The applicant enlisted on 18 June 1981 for a period of 4 years.  He successfully completed training and was transferred to Germany for duty as a combat engineer.  He served in Germany from 3 November 1981 to 28 September 1983 and was transferred to Fort Knox, Kentucky on 31 October 1983.    

The facts and circumstances surrounding the applicant’s discharge are not contained in the available records; however, his records show that he was discharged under other than honorable conditions on 19 July 1984, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of court-martial.  He had served 2 years, 9 months and 24 days of total active service with 99 days of lost time due to AWOL.  

Item 18 (Remarks) of the applicant’s DD Form 214 shows “EXCESS LEAVE OF 39 DAYS FROM 840611-840719”.  DA Form 31 (Request and Authority for Leave), dated 11 June 1984, shows the applicant requested to be placed in an excess leave status until finalization of his separation.  

Item 26 (Separation Code) of the applicant’s DD Form 214 shows “KFS”.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) shows SPD “KFS” for the narrative reason “In lieu of trial by court-martial”.       

Item 27 (Reenlistment Code) of the applicant’s DD Form 214 shows “RE 3B, 3”.
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 processing into the Regular Army and the USAR.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of armed forces RE codes.

RE-3B applies to persons who have lost time during their last period of service.

RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable, such as discharged for the good of the service.

Item 29 (Dates of Time Lost During This Period) of the applicant’s DD Form 
214 shows “840214-840313, 840323-840325, 840330-840604”.  The applicant’s personnel records indicate that he went AWOL from 14 February 1984 to 
13 March 1984; from 23 March 1984 to 25 March 1984; and from 30 March 1984 to 4 June 1984.

There is no indication in the available records to show that the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

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 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.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

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 noted the counsel’s contentions and the psychological evaluation submitted with the application.  However, there is no evidence of record available to the Board, and the applicant nor counsel has provided any evidence, that shows the applicant was the victim of a sexual assault while in the military and that his discharge was directly related to the assault and his subsequent post-traumatic stress disorder.  

2.  In the absence of evidence to the contrary, it must be presumed that 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.  Accordingly, the type of discharge directed and the reasons therefore appear to be appropriate considering all of the facts of the case.

3.  The evidence of record shows the applicant was on excess leave from
11 June 1984 until his separation date of 19 July 1984.  Therefore, item 
18 (Remarks) on his DD Form 214 is correct as currently constituted.

4.  The separation code, RE code, and narrative reason for separation used in the applicant’s case are correct and were applied in accordance with the applicable regulations.

5.  The applicant has failed to show through the evidence submitted or the evidence of record that the separation code, RE code and the narrative reason for separation issued to him were in error or unjust.

6.  The evidence of record shows the applicant was AWOL from February 1984 to 13 March 1984; from 23 March 1984 to 25 March 1984; and from 30 March 1984 to 4 June 1984.  Therefore, item 29 (Dates of Time Lost During This Period) is correct as currently constituted.

7.  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 the aforementioned requirement.

8.  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

CMF____  TNK____  RJW_____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999020804	
SUFFIX		
RECON		
DATE BOARDED	19990722	
TYPE OF DISCHARGE	(UOTHC)	
DATE OF DISCHARGE	19840719	
DISCHARGE AUTHORITY	AR 635-200 Chapter 10	
DISCHARGE REASON	For the good of the service in lieu of court-martial	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110.0200	
2.	100.0300	
3.	134.0000	
4.	123.0700	
5.		
6.