PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:           19 April 2000     
	DOCKET NUMBER:   AR1999025978

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Richard H. Allen		Analyst	

  The following members, a quorum, were present:

	Mr. James P. Huber		Chairperson	
	Mr. Elzey J. Arledge Jr.		Member	
	Mr. Van B. Cunningham		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests in effect correction of appropriate military records to show a reentry eligibility (RE) code which would allow reenlistment.  In effect, this constitutes a request for removal or waiver of those disqualifications which preclude reenlistment.

3.  The applicant states, in a letter with his application, that he made a mistake 
“2 years ago” and he is devastated.  He has been barred from reenlistment, but the incident was isolated.  By inference, he indicates that the incident involved the abuse of drugs.  Subsequent urinalysis and blood tests confirm his claim of an isolated incident.  He thought he would only be punished, but retained in the service, which was based upon information from his military legal counsel. However, his command decided to make an example of him and initiated separation action.  He submits a character reference statement from his father, a retired Air Force senior master sergeant.  He also submits a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), issued on 30 June 1997.  

4.  The applicant’s military records are not available to the Board.  However, the applicant’s DD Form 214 shows that he entered active duty on 6 January 1997.  At that time he had 2 years, 9 months and 15 days inactive service, most likely in the Army Reserve (USAR) and 4 months and 12 days prior active service.  His military occupational specialty (MOS) was 74C (Record Telecommunications Center Operator-Maintainer), which most likely was the MOS he held when he entered active duty.

5.  On 30 June 1997, the applicant was discharged from active duty, and was not returned to the USAR, with a general discharge, under honorable conditions.  The reason for his discharge was shown as misconduct and the authority shown for the discharge was Army Regulation 635-200, paragraph 14-12c(2).  His rank was shown as private, pay grade E-1, with a date of rank of 22 May 1997.  This would be consistent with his claim that he received nonjudicial punishment for his misconduct (which would have been administered under the provisions of Article 15, Uniform Code of Military Justice).  A reduction in rank would be an authorized punishment. 

6.  He was credited with 5 months and 25 days active service on the enlistment under review.  He was assigned an RE code of RE-4.

7.  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, commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities, desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is considered normal, but a general or honorable discharge could be awarded at the discretion of the separation authority.  

8.  There is no evidence of record that the applicant has ever made application for the review of his discharge in accordance with Title 10, United States Code, Section 1553, by the Army Discharge Review Board.  He may make such an application, utilizing a DD Form 293, up to 15 years from the date of his discharge.  That board may upgrade a discharge or change the reason for discharge.  However, it is not authorized to review and make changes to an RE code.  

9.  In accordance with Army Regulation 15-185, the regulatory authority under which this Board operates, applicants must demonstrate that they have exhausted all other reasonable administrative remedies to resolve their problem before making application to this Board.  

10.  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 60l-2l0 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.

11.  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, 10, 13, and 14, to include paragraph 14-12c(2) of Army Regulation 635-200 are assigned an RE-3.  

12.  Requests for waivers to reenlistment for personnel with an RE-3 will be made by recruiting officials in accordance with Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Programs).

13.  RE-4 applies to soldiers who are separated with a reason for discharge which would permanently preclude reenlistment.  Conviction by a court-martial, certain medical and moral conditions and the like are also included in this category.  

CONCLUSIONS:

1.  While the discharge proceedings are not available, the Board concludes that, in the absence of evidence to the contrary, the applicant was appropriately discharged on 30 June 1997 for misconduct.

2.  However, the Board declines to review the discharge action until such time that the applicant has exhausted his administrative remedies and makes application to the ADRB.

3.  Notwithstanding the above, the Board also concludes that the assigned RE-4 code in the applicant’s case is in error.  It should have been RE-3.  This would then permit the applicant the opportunity to apply for enlistment or reenlistment requesting a waiver of the RE code.  

4.  It is also noted that this should not be interpreted to guarantee the applicant the right to reenlist, only to apply for reenlistment.  The final decision rests with recruiting officials based upon policy guidance and needs of the service at the time of reenlistment. 

5.  Additionally, the applicant may make application to the ADRB for a review of his discharge.  Favorable action by that board could affect his chances for reenlistment.  

6.  In view of the foregoing, the applicant’s records should be corrected, but only  as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing that the applicant was issued an RE code of RE-3 at the time of his discharge from active duty on 30 June 1997 vice the RE-4 that currently is shown on his DD Form 214.  

2.  That so much of the application as is in excess of the foregoing be denied.
BOARD VOTE:  

___jph___  __eja___  __vbc___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__James P. Huber____
		        CHAIRPERSON

INDEX

CASE ID	AR1999025978	
SUFFIX		
RECON		
DATE BOARDED	20000419	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	19970630	
DISCHARGE AUTHORITY	AR635-200, Chapter 14 . . . . .  	
DISCHARGE REASON	A67.00	
BOARD DECISION	PARTIAL GRANT 	
REVIEW AUTHORITY	DASA	
ISSUES         1.	100.03	
2.	144.00	
3.	A01.44	
4.		
5.		
6.