MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            30 January 2003
	DOCKET NUMBER:   AR2002076770

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Walter T. Morrison		Chairperson	
	Mr. Christopher J. Prosser		Member	
	Ms. Yolanda Maldonado		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 (RE) Code be changed to a more favorable code.

APPLICANT STATES:  In effect, that his current RE Code of “4” is nonwaiverable and does not allow him to enlist in the Vermont Army National Guard (VTARNG).

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

He enlisted in Brooklyn, New York on 1 December 1988, for a period of 4 years, training as a combat engineer and assignment to Europe.  He completed his training and was transferred to Germany on 27 March 1989.  He was advanced to the pay grade of E-2 on 1 May 1989. 

On 9 June 1989, nonjudicial punishment (NJP) was imposed against him for disobeying a lawful order and being disrespectful towards a noncommissioned officer (NCO).  His punishment consisted of a reduction to the pay grade of E-1 (suspended for 90 days), restriction and extra duty.  The suspended portion of his sentence (reduction) was vacated on 20 June 1989, due to the applicant having disobeyed a lawful order from an NCO on 14 June 1989.

On 14 November 1989, NJP was again imposed against him for two specifications of being disrespectful in language towards two NCOs.  His punishment consisted of a reduction to the pay grade of E-1, a forfeiture of pay, extra duty and restriction.

On 27 March 1990, the applicant was convicted by a special court-martial of five specifications of striking other soldiers.  He was sentenced to confinement for 30 days, a forfeiture of pay ($483.00) and a bad conduct discharge (BCD).  

On 7 March 1991, the United States Court of Military Review (USCMR) determined that the most the applicant could be assessed in regards to a forfeiture of pay was $482.000.  The USCMR changed the forfeiture to $482.00 and affirmed the remainder of the sentence as approved by the convening authority.

On 3 September 1991, he was discharged with a BCD, pursuant to a duly reviewed and affirmed special court-martial conviction.  He had served 2 years, 9 months and 3 days of total active service and had 24 days of lost time due to confinement.  He also had a bar to reenlistment imposed against him and was issued a RE Code of “4.”

He applied to the Army Discharge Review Board (ADRB) on 14 March 2002, contending that he has learned from his mistakes and since his discharge, has married, fathered two children, obtained a Bachelor’s Degree, and works as a counselor and behavior interventionist for troubled adolescents.  He indicated that he is eager to serve in the VTARNG and show that he can contribute positively.  The ADRB granted him an upgrade of his BCD to a general discharge as a matter of clemency on 10 July 2002.  However, there was no change directed in regards to the reason for his discharge or his RE Code.

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 reason for discharge.  Army Regulation 601-210 covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) 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, including RA RE codes.

Army Regulation 601-210 serves as the authority for the issuance of RE codes.  It states, in pertinent part, that an RE code of 4 will be issued to persons who are discharged with a BCD or dishonorable discharge (DD).  A separation with either a BCD or a DD is deemed a non-waiveable disqualification.

Title 10, United States Code, section 1552, the authority under which this Board acts, provides, in pertinent part, that the Board is not empowered to set aside a conviction.  Rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then 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.

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.  Notwithstanding the actions of the ADRB to upgrade the applicant’s BCD to a general discharge, the Board finds that he was issued the appropriate RE Code at the time of his separation, based on the reason for his separation and his overall undistinguished record of service.

3.  While the Board commends the applicant for his post-service accomplishments, the Board finds no error or injustice in his case and does not find the basis for his request sufficiently mitigating to warrant relief beyond what the ADRB granted him. 

4.  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

__cjp____  __wtm __  __ym ___  DENY APPLICATION

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

INDEX

CASE ID	AR2002076770	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2003/01/30	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  4	100.0300/RE CODE	
2.		
3.		
4.		
5.		
6.