MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:         

	BOARD DATE:            16 December 1999
	DOCKET NUMBER:   AR1999023964

	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. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Mr. Fred K. McCoy		Chairperson	
	Mr. Raymond V. O’Connor, Jr.		Member	
	Mr. Stanley Kelley		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 he receive a new reentry eligibility (RE) code.

APPLICANT STATES:  In effect, that his RE code is inconsistent with his faithful and honorable service.  He claims that when all the facts are considered his single incident of misconduct is outweighed by sufficient service of merit.  He also indicates that this request is supported by a decision of the Army Discharge Review Board (ADRB) to upgrade the characterization of his service to honorable.

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

On 21 November 1989, the applicant initially enlisted in the Regular Army and served continuously for 4 years, 6 months, and 6 days until he was discharged, in the rank of private/E-1, on 26 May 1994.

His records show that the highest rank he attained while on active duty was specialist/E-4 and that he earned the Army Service Ribbon; the National Defense Service Medal; the Army Achievement Medal; the Overseas Service Ribbon; the Army Good Conduct Medal; two Army Commendation Medals; and the Southwest Asia Service Medal for service during Operation Desert Storm.

His disciplinary record includes his acceptance of nonjudicial punishment (NJP), under the provisions of Article 15 of the UCMJ, on two separate occasions.  The first on 2 April 1993, for missing bed check and the second on 22 March 1994, for wrongfully using cocaine.  The second NJP resulted in his being reduced to the rank of private/E-1.

On 22 April 1994, the applicant’s unit commander notified the applicant that he was initiating separation action, under the provisions of chapter 14, Army Regulation 635-200, for misconduct, abuse of illegal drugs.  In addition, he advised the applicant he was recommending that he receive a general, under honorable conditions discharge (GD).  The reason cited by the commander for taking this action was that the applicant had received a positive urinalysis test for cocaine.  The applicant consulted counsel, was advised of the basis for the contemplated separation action and its effects; of the rights available to him; and of the effect of any action taken by him to waive those rights.  

On 2 May 1994, the appropriate separation authority approved the applicant’s separation and directed that he receive a GD.  Accordingly, on 26 May 1994, the applicant was discharged with a GD, after completing a total of 4 years, 
6 months, and 6 days of active military service.

The record contains a properly constituted DD Form 214 (Report of Separation from Active Duty), issued on the date of discharge and authenticated by the applicant, which documents the following:  Character of Service-Under Honorable Conditions; Authority for Separation-Paragraph 14-12c, AR 635-200; Separation Program Designator (SPD) code-JKQ; and RE code 3.  

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, and the commission of a serious offense, which includes the abuse of illegal drugs.  

On 2 April 1997 the ADRB determined that the characterization of service received by the applicant was too harsh.  Therefore, the ADRB upgraded the applicant’s characterization of service to fully honorable; however, they found that the reason for discharge was both proper and equitable, and voted not to change it.  

As a result of the ADRB decision a new DD Form 214 (Certificate of Release or Discharge from Active Duty) was issued to the applicant which documents the following:  Character of Service-Honorable; Authority for Separation-Army Regulation 635-200, Paragraph 14-12c, Narrative Reason for Separation-Misconduct; SPD code-JKQ; and RE code 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 and 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, including RA, RE codes.

RE code 3 applies to persons not qualified for continued Army service, but the disqualification is waivable.  Certain persons with bars to reenlistment are so disqualified, as are those who are discharged under the provisions of chapters 
9, 10, 13, and 14 of Army Regulation 635-200.

AR 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  The SPD code of JKQ was the appropriate code for the applicant based on the guidance provided in AR 635-5-1 for soldiers separating under the provisions of Paragraph 14-12c for Misconduct.  

Additionally, Table 2-3 (SPD/RE Code Cross Reference Table), AR 635-5 (Separation Documents) establishes RE Code 3 as the proper reenlistment eligibility code to assign soldiers separated under the provisions of Paragraph 14-12c, Chapter 14, AR 635-200, for Misconduct.

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 applicant’s desire to change his RE code based on his overall record of service.  However, after carefully examining the evidence of record and the independent evidence submitted by the applicant, the Board found no basis for relief.  

2.  The ADRB found that the characterization of service initially granted the applicant was too harsh; however, they concluded the reason for the applicant’s discharge was proper and equitable; this Board concurs with these ADRB findings.  The RE code assigned is directly related to the reason for discharge and not to the characterization of his service.  Therefore, the Board found no injustice in the applicant’s RE code remaining a 3 even after his characterization of service was upgraded.  

3.  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.

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

__sk ____  ___fkm__  __rvo ___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999023964	
SUFFIX		
RECON		
DATE BOARDED	1999/12/16	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1994/05/26	
DISCHARGE AUTHORITY	AR 635-200 C14	
DISCHARGE REASON	Misconduct	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  4	100.0300	
2.		
3.		
4.		
5.		
6.