MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           18 June 2002                  
	DOCKET NUMBER:   AR2001064558

	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	
	Ms. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Ms. Karol A. Kennedy		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. Allen L. Raub		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 reentry eligibility (RE) Code be changed from a code of RE-4 to a code of RE-1 so that he may be eligible to enlist in the Navy.

APPLICANT STATES:  That at the time of his enlistment, he was only 18 years old and he had never been away from home.  He has matured and become very dependable and the circumstances surrounding his discharge are embarrassing. He enjoys working and would like the opportunity to serve his country.  He has been married for 8 years. 

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

He was born on 11 March 1969 and enlisted in the Regular Army for 4 years on 4 April 1989 at 20 years of age.  Following completion of all required military training, he was assigned to a unit at Fort Hood, Texas, with duty as a Utility Equipment Repairer, military occupational specialty (MOS) 52C.  He arrived at Fort Hood on/about 9 March 1990.

The applicant was absent without leave (AWOL) from his unit from 
25 May-27 June 1990; from 16-17 July 1990; and from 31 July-31 August 1990.  On 2 September 1990, the applicant was place in pre-trial confinement.

On 14 September 1990, the applicant was convicted by a special court-martial of the above periods of AWOL; of failure to go to his appointed place of duty at the time prescribed on 24 July 1990; of breaking restriction on 31 July 1990; and of uttering three checks that equaled $420.00 on 6, 15 and 25 May 1990 when his account contained insufficient funds.  He was sentenced to reduction from pay grade E-3 to pay grade E-1, forfeiture of $446.00 pay per month for 4 months, to be confined at hard labor for 4 months, and to be discharged with a Bad Conduct Discharge (BCD).  

On the same date, the convening authority approved the sentence adjudged.  
The applicant’s record of trial was forwarded to the United States Court of Military Review. 

On 11 December 1990, the applicant was released from confinement.  On 19 December 1990, he was placed on excess leave.  

On 3 April 1991, the United States Court of Military Review affirmed the findings and approved the sentence.  On 9 July 1991, the appropriate authority ordered the BCD to be duly executed. 

On 29 July 1991, the applicant was discharged in absentia under the provisions of chapter 3, Army Regulation 635-200, with a BCD as a result of his conviction in a trial by court-martial and assigned an RE code of RE-4.  His DD Form 214 

(Certificate of Release or Discharge from Active Duty) shows that he completed 1 year, 10 months and 10 days of active military service and he had 168 days of lost time due to AWOL and military confinement.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3, paragraph 3-11, provides that a soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

Court-martial convictions stand as adjudged or modified by appeal through the judiciary process.  In accordance with Title 10, United States Code, Section 
1552, the authority under which this Board acts, the ABCMR is empowered to change the severity of the sentence imposed in the court-martial process only if clemency is determined to be appropriate.  Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed.

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 enlisting and processing into the RA and the eligibility for prior service applicants for enlistment.  That chapter includes a list of Armed Forces RE codes and RA RE codes. 

An RE code of RE-4 applies to persons not qualified for continued Army service. Those individuals discharged under the provisions of chapter 3, Army Regulation 635-200, as a result of court-martial are disqualified to reenlist and the disqualification is nonwaivable.

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 has failed to submit evidence that would satisfy this requirement.

2.  Trial by court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.  There has been no basis established to grant clemency, which is required for removal or waiver of the disqualification that established the foundation for the applicant's RE code.
3.  The applicant was separated and assigned an RE code of RE-4 in accordance 
with regulations then in effect.  The assigned RE code was and still is appropriate.

4.  The Board has taken into consideration the applicant’s contention that he was young at the time of his enlistment.  However, he met entrance qualification standards, to include age.  There is no evidence that he was any less mature than other soldiers who successfully completed their military service obligation.

5.  The Board notes that the applicant's DD Form 214 incorrectly shows that he was in confinement from 2 February-11 December 1990 vice 2 September-10 December 1990.

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.

NOTE:  Request that the Army Review Boards Agency, Support Division, St. Louis furnish the individual concerned a DD Form 215 (Correction to DD Form 214) to show Item 18 (Remarks) has been corrected  by deleting 900202-901211 and adding 900902-901210.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__kak___  __mhm___  __alr___  DENY APPLICATION

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

INDEX

CASE ID	AR2001064558	
SUFFIX		
RECON		
DATE BOARDED	20020618	
TYPE OF DISCHARGE	(BCD)	
DATE OF DISCHARGE	19910729	
DISCHARGE AUTHORITY	AR635-200	
DISCHARGE REASON	A71.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	144.7100	
2.		
3.		
4.		
5.		
6.