MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:            5 April 2000
	DOCKET NUMBER:   AR2000034961

	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. Joyce A. Wright		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor, Jr.		Chairperson	
	Mr. Stanley Kelley		Member	
	Mr. Lester Echols		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 his Reentry (RE) Code 3 be changed to
a more favorable code in order to enter the US Army Reserves.

APPLICANT STATES:  In effect, that during his urinalysis testing the tamper seals were missing and that the specimen bottles were not numbered and that he believes that there is a discrepancy in the chain of custody which would not be admissible in a court of law.  In support of his application he submits a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), copy of DA Form 4833 (Commander’s Report of Disciplinary or Administrative Action), DA Form 5180-R (Urinalysis Custody and Report Record), Chain of Custody, Urine Sample Custody Document, Sample Submission Discrepancy Report and a copy of Forensic Toxicology Drug Testing Laboratory Specimen Discrepancy Checklist.

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

He enlisted on 7 May 1993 as a administrative specialist.

On 4 May 1992, nonjudicial punishment (NJP) was imposed against the applicant for failure to obey a traffic signal while driving drunk on 15 March 1992.  His punishment consisted of a reduction to the pay grade of E-2, a forfeiture of pay and 14 days restriction and extra duty.

On 6 October 1992, a urine specimen was obtained from the applicant, which tested positive for lysergic acid diethylamide (LSD).

On 9 December 1992, NJP was imposed against the applicant for wrongful use of a control substance (LSD) on 27 July 1992.  His punishment consisted of a reduction to E-1, a forfeiture of pay and 30 days extra duty.

The applicant underwent a mental evaluation on 19 March 1993, which determined that he could distinguish right from wrong and that he possessed sufficient mental capacity to participate in administrative or judicial proceedings.

On 29 March 1993, the applicant was notified by his commander that he was being recommended for discharge under the provisions of Army Regulation 
635-200, chapter 14, for misconduct based on abuse of illegal drugs.  He based his recommendation on the applicant’s positive urinalysis for LSD and his NJP for wrongful use of LSD.

After consulting with counsel, he waived consideration of his case by a board of officers and representation by counsel and elected not to submit a statement in his own behalf.  On the same day the commander submitted his recommendation to separate the applicant under the provisions of AR 635-200, chapter 14, for misconduct based on illegal drug abuse.

On 5 April 1993, the separation authority approved the recommendation for discharge and directed that he be issued a General Discharge Certificate.  The applicant was discharged on 7 May 1993.  He had a total of 2 years, 9 months, and 27 days of creditable service and was issued an RE code of RE “3”.

There is no evidence that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15 year statute of limitations.

Army Regulation 635-200 sets for 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, patterns 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. 

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 nor 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 chapter 9, 10, 13, 14, and 16 of Army Regulation 635-200.

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.  Careful consideration has been given to the applicant’s contentions.  However, his illegal drug abuse and patterns of misconduct were too serious to warrant equitable relief.

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

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

4.  The applicant was separated and assigned a reentry code in accordance with regulations then in effect.

5.  The applicant has failed to show, through the evidence submitted with his application or the evidence of record that the RE code issued to him was incorrect.

6.  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.

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:

_RVO____ SK_____  LE______  GRANT

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

Karl F. Schneider
Director, Army Review Boards Agency

INDEX

CASE ID	AR2000034961	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000405	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	19930507	
DISCHARGE AUTHORITY	AR 635-, C-14	
DISCHARGE REASON	110	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  4		
2.		
3.		
4.		
5.		
6.