MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

           BOARD DATE:           8 March 2000
	DOCKET NUMBER:  AR1999027441

	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. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor Jr.		Chairperson	
	Mr. Elzey J. Arledge 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 effect, correction of his DD Form 214, (Certificate of Release or Discharge from Active Duty), to change his reentry eligibility (RE) code from RE-4 to one which will allow reenlistment.  This constitutes a request for removal or waiver of those disqualifications which preclude reenlistment. 

APPLICANT STATES:  He makes no contentions.

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

That prior to the enlistment under review he completed two honorable periods of service in the Regular Army from 6 October 1978-7 July 1981 and from 8 July 
1981-11 June 1985.  On 12 June 1985, he reenlisted in the RA for a period of 
6 years and in his previous military occupational specialty (MOS) 
11B Infantryman). 

On 13 July 1987, the applicant was assigned to Fort Wainwright, Alaska. 
On 24 May 1990, he was convicted by a special court-martial (SPCM) of larceny of American Express Traveler Checks totaling $400.00 on 31 August 1989.  He was sentenced to reduction from pay grade E-5 to pay grade E-1, forfeiture of $400.00 pay for 1 month, and to be separated with a bad conduct discharge (BCD).

On 23 July 1990, the convening authority approved the sentence as adjudged, and except for the part pertaining to the BCD, ordered the sentence executed.

On 10 August 1990, the applicant was placed on excess leave without pay and allowances for the convenience of the government.

On 15 May 1991, SPCM Order 8, Headquarters, 6th Infantry Division (Light) and US Army Garrison, Alaska announced that Article 71C having been complied with directed the discharge be executed.  The United States Court of Military Review, affirmed the findings and approved the sentence. 

However, for reasons unknown, it was not until 23 July 1993, that the applicant was discharged, in absentia, under the provisions of chapter 3, Army Regulation 635-200 with a BCD, as a result of court martial.  He was assigned an RE code of RE-4.  He had completed 8 years, 1 month and 12 days of active military service on the enlistment under review and he had completed a total of 14 years, 9 months and 18 days active military service.  He had no recorded lost time.  

On 28 April 1998, the Army Discharge Review Board reviewed the applicant's case and determined that clemency was warranted due to the nature of the offense and his excellent service record.  He was granted clemency in the form of an honorable characterization of service.  Neither the reason for separation nor the RE code was changed.
Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3, paragraph 3-11, provides that a soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

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 enlisting and processing into the RA and the eligibility for prior service applicants for enlistment.  That chapter includes a list of Armed Forces RE codes and RA RE codes. 

A code of RE-4 applies to persons not qualified for continued Army service.  Those individuals discharged under the provisions of chapter 3, Army Regulation 635-200, as a result of court-martial are disqualified and the disqualification is nonwaiverable.

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. This Board concurs with the findings and conclusions of the ADRB in its 
decision not to change the applicant's narrative reason for separation.  He was separated by reason of SPCM which directed his BCD.

3.  The applicant’s administrative separation was accomplished in compliance with applicable regulations and there is no indication of procedural errors by the ADRB which jeopardized his rights.

4.  The Board concludes that the RE-4 was the proper RE code in his case. Since the reason for his discharge has not been changed, there has been no basis established for removal or waiver of the disqualification which established the basis for the assigned RE code.  His assigned RE code is still appropriate.

5.  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

__rvo___  __eja____  __ewl___  DENY APPLICATION

Karl F. Schneider
Director, Army Review Boards Agency

INDEX

CASE ID	AR1999027441	
SUFFIX		
RECON	20000308	
DATE BOARDED		
TYPE OF DISCHARGE	(HD)	
DATE OF DISCHARGE	19930723	
DISCHARGE AUTHORITY	AR 635-200, Chapter 3  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	100.03	
2.		
3.		
4.		
5.		
6.