MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           30 March 2000
	DOCKET NUMBER:   AR1999027426

	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.

	Ms. Antoinette Farley		Analyst	

  The following members, a quorum, were present:

	Ms. Barbara J. Ellis		Chairperson	
	Mr. Hubert O. Fry Jr.		Member	
	Mr. Ernest W. Lutz Jr.		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 essence, that his general discharge (GD) under honorable conditions be upgraded to a honorable discharge and that he receive a reenlistment code (Reentry Eligibility (RE) Code) to reflect that change. 

APPLICANT STATES:  In effect, he relies on his military record.  He provides a copy of his current reenlistment, a copy of his DD Form 214, a copy of his Honorable Discharge Certificate from his first enlistment dated 16 April 1997 and a copy of his Oath of Reenlistment certificate, dated 17 April 1997, in support of his request. 

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

He enlisted in the Regular Army for 3 years on 25 November 1994 and completed basic training at Fort Jackson, South Carolina.  On 11 May 1995, he completed advanced individual training in military occupational specialty (MOS) 94B10, Food Service Specialist, and he was assigned to duty at Fort Hood, Texas.  On 16 April 1997, he was honorably discharged in order to immediately reenlist on 17 April 1997 for his present duty assignment. 

On 12 September 1997, he received a summarized nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for being absent from his appointed place of duty from 26 June to 27 June 1997, for failure to go his appointed place of duty on 30 April 1997, and for failure to go his appointed place of duty on 4 April 1997.  His punishments included 14 days of extra duty. 

On 7 October 1997, the applicant’s commander initiated a bar to reenlistment.  As the basis for his recommendation, he cited the applicant’s NJP offenses, his failure to maintain financial responsibility, his driving with a suspended license, and his failure to appear in court and failure to pay court fines.  On 28 October 1997, the bar to reenlistment was approved.

On 9 February 1998, the applicant was medically cleared for separation.

On 7 April 1998, the applicant’s unit commander initiated action to separate him with a GD under the provisions of Chapter 14, Army Regulation 635-200, for misconduct - frequent incidents of a discreditable nature with civil or military authorities.  The applicant was advised of his rights, consulted with legal counsel, and was informed of the impact of a less than fully honorable discharge.  He voluntarily waived consideration of his case by an administrative separation board contingent upon receiving a GD and elected not to submit a statement in his own behalf.

On 10 April 1998, the intermediate commander reviewed the proposed discharge action and recommended approval of the separation action with a GD.

On 15 April 1998, the senior commander reviewed the proposed discharge action and recommended the conditional waiver be approved and that the applicant be discharged with an GD, under honorable conditions.

On 23 April 1998, the separation authority waived further rehabilitative efforts and directed that the applicant be discharged with a GD under honorable conditions. 

On 2 June 1998, the applicant was separated with a GD under the provisions of Army Regulation 635-200, chapter 14, for misconduct.  The applicant completed 1 year, 1 month and 16 days of his current enlistment and 3 years and 7 months of total active military service.  The highest pay grade he achieved was E-4.  Note:  The applicant’s MOS code, 94B10, was changed on 31 December 1995, in accordance with DA Circular 611-95-1 to MOS 92G10 (Food Service Specialist).

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, and convictions by civil authorities.  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 normally appropriate for a soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the soldier’s overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

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.

RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable.  Certain persons who have lost time, local bars to reenlistment and those discharged under the provisions of chapters 9, 10, 11, 13, and 14 of Army Regulation 635-200 are assigned an RE-3.

The applicant petitioned the Army Discharge Review Board (ADRB) on 18 May 1999, seeking a discharge upgrade.  The ADRB, after considering his case on 
23 June 1999 denied his request.

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 the aforementioned requirement.

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of any procedural errors that would jeopardize his rights.  

3.  The type of discharge directed and the reason for separation were appropriate considering all the facts of the case.

4.  There appears to be no basis for removal or waiver of the disqualification which established the basis for the RE code.

5.  In view of the circumstances in this case, the assigned RE eligibility code was, and still is, appropriate.

6.  While the Board has taken cognizance of the applicant’s good post-service conduct, it does not warrant the relief requested.

7.  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

__bje____  __hof___  __ewl ___  DENY APPLICATION

				Karl F. Schneider
				Director, Army Review Boards Agency

INDEX

CASE ID	AR1999028685	
SUFFIX		
RECON		
DATE BOARDED	20000330	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19810826	
DISCHARGE AUTHORITY	AR .635-200 CH14 	
DISCHARGE REASON	A67.50	
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	144.00	
2.	A92.17	
3.	A92.23	
4.	A92.35	
5.	A01.00	
6.	A67.10