PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:           16 February 2000      
	DOCKET NUMBER:   AR1999027384

	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.  

	Ms. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Ms. Meta Waller		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 that both his reason for discharge and his reenlistment eligibility (RE) code be changed and the character of his undesirable discharge (UD) be upgraded to a fully honorable discharge (HD).

3.  The applicant states that he is a disabled veteran as a result of a combat injury.  Due to having a UD, he has been denied treatment by the Wisconsin, Department of Veterans Affairs (DVA).  He also states that he was suffering from post traumatic stress disorder (PTSD) at the time of discharge.  He was not afforded proper legal counsel and he was not told what he was signing.  He submits a written statement in support of his request.

4.  The applicant’s military records show that on 25 November 1968, at age 17, the applicant enlisted in the Regular Army (RA) for a period of 3 years and military occupational specialty (MOS) 11C (Indirect Fire Crewman).  He enlisted with a declaration of parental consent signed by both of his parents.  

5.  On 17 January 1970, the applicant accepted nonjudicial punishment (NJP) under the provision of Article 15, Uniform Code of Military Justice, for failure to go to his appointed place of duty at the prescribed time.  His punishment included 
14 days restriction and extra duty.

6.  On 21 May 1970, the applicant accepted NJP, for being absent without leave (AWOL) from his unit from 30 April-13 May 1970.  His punishment included reduction from pay grade E-3 to pay grade E-1, forfeiture of pay, extra duty and restriction.

7.  A Federal Bureau Investigation Report, dated 12 June 1970, shows that, on 
12 May 1970, the applicant was arrested in Racine, Wisconsin on a burglary charge.  The disposition is not a matter of record.  

8.  On 10 June 1970, the applicant was assigned to the Republic of Vietnam (RVN).  On 3 July 1970, he accepted NJP for leaving his guard post before he was properly relieved.  His punishment included forfeiture of pay.  

9.  On 30 January 1971, he accepted a fourth NJP for wrongfully having in his possession five plastic packs that each contained ten hand rolled marihuana cigarettes, for having in his possession four bottles labeled “Obesitol” which contained liquid believed to be a dangerous drug, and for failure to wear headgear with his uniform while outdoors on 4 December 1970.  His punishment included reduction from pay grade E-3 to pay grade E-1, forfeiture of pay and extra duty.

10.  The applicant’s record is void of the facts and circumstances surrounding the discharge process.  However, the record does contain a properly constituted 
DD Form 214 (Report of Separation from Active Duty) that he signed at the time of separation.  His DD Form 214 shows that he was separated on 9 March 1971, under the provisions of Army Regulation 635-212, for frequent incidents of a discreditable nature with civil or military authorities.  He was separated with a UD and assigned an RE code of RE-4.  He had accrued 2 years, 3 months and 1 day of creditable service and he had 13 days lost time due to being AWOL.

11.  The available records show that the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge on 29 May 1973. 

12.  Army Regulation 635-212, in effect at the time set forth the basic authority for the elimination of enlisted personnel.  Paragraph 6 of the regulation provided, in pertinent part, for the separation of individuals determined to be unfit for further service by reason of frequent incidents of a discreditable nature with civil or military authorities.  Under this regulation and paragraph the appropriate authority could approve an honorable, a general discharge or a UD.

13.  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 (RA) 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 RA RE codes.

14.  E-3 applies to persons not qualified for continued Army service, but the disqualification is waivable. Certain persons who have received nonjudicial punishment are so disqualified, as are persons with bars to reenlistment, and those discharged under the provisions of chapters 9, 10, 13, and 14 of Army Regulation 635-200.  In 1971, personnel separated under the provisions of Army Regulation 635-212 also were entitled to receive an RE-3.  

15.  According to Army Regulation 601-210, those individuals that are assigned an RE code of RE-4 at the time of discharge are separated with a nonwaivable disqualification.

CONCLUSIONS:

1.  The applicant authenticated his DD Form 214 at the time of separation.  
Even though his separation documents are not a matter of record the government presumes regularity in the discharge process. 

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

3.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

4.  Many of the misconduct offenses the applicant committed were committed in a combat zone during hostile operations.  He also abused the Army’s policies concerning illegal drugs. These offenses clearly diminished the quality of his service below that meriting an under honorable conditions discharge. 

5.  The Board noted the applicant’s current medical problems, however, there is no evidence that shows the applicant had a medical condition that was either incurred or aggravated by active military service.  The applicant has provided no evidence to the contrary.

6.  Further, the applicant’s current medical problems do not provide a basis for upgrade of his discharge.  He should work with the DVA to determine the availability of medical treatment.

7.	However, the applicant’s RE code is erroneously shown on his DD Form 
214 (Armed Forces of the United States Report of Transfer or Discharge) as 
RE-4.  His RE code should be shown as RE-3.

8.  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 issuing to the individual concerned a DD Form 215 (Correction to DD Form 214) which corrects Item 15 of the DD Form 214 (reenlistment code) that he was separated with an RE code of RE-3.

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

BOARD VOTE:  

AAO____  CLG____  MW_____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__Arthur A. Omartian_
		        CHAIRPERSON

INDEX

CASE ID	AR1999027384	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000224	
TYPE OF DISCHARGE	(UD)	
DATE OF DISCHARGE	19710309	
DISCHARGE AUTHORITY	AR635-212 	
DISCHARGE REASON	A67.00	
BOARD DECISION	(NC)	
REVIEW AUTHORITY		
ISSUES         1.	144.6700	
2.		
3.		
4.		
5.		
6.