PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:  12 September 2000
	DOCKET NUMBER:  AR2000036416

	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. Carl W. S. Chun		Director	
	Ms. Lee Tinsley		Analyst	

  The following members, a quorum, were present:

	Mr. Calvin M. Fowler		Chairperson	
	Ms. Carol J. Suiter		Member	
	Mr. Fred N. Eichorn		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 his reenlistment code RE-4 be changed to 
RE-3 so that he can return to active duty in the Army.

3.  The applicant states, in effect, that he was put out of the Army because of an incident that he had already been punished for 2 years prior.  Later his new first sergeant used the same incident to have him discharged from the Army and he feels that this action is unjust.

4.  Records available to the Board show that the applicant was born on 
17 September 1973.  He entered the Army Delayed Enlistment Program (DEP) on 
2 October 1991, enlisted in the Regular Army on 21 August 1992, and was awarded Military Occupational Specialty 75C (Personnel Services Specialist).  He was promoted to pay grade E-4 effective 1 March 1994.

5.  During the course of the applicant’s enlistment he received numerous counseling statements.  The counseling statements were based on performance and misconduct.  The applicant also was punished a total of three times under Article 15, Uniform Code of Military Justice (UCMJ).  The Article 15s consisted of (1) attempted larceny and larceny and (2) for failure to go.  The applicant was notified through a counseling statement, dated 7 March 1996, that he was being recommended for separation for misconduct.

6.  On 9 August 1996 the applicant was indicted by the state of Maryland for Arson (2nd degree), Malicious Burning, and Conspiracy to Commit Arson.  It appears by the records available that the applicant received a fine and probation from the state of Maryland and that military authorities took no action against the applicant.  Several counseling statements signed by the applicant are consistent and dated after the indictment.

7.  The applicant was provided a medical examination that found him to be qualified for separation.  At a mental status evaluation the applicant was fully alert and oriented.  He described his mood as “calm” and his affect was appropriate.  His thought processes were clear and thought content was normal.  The applicant’s memory was good.  He was mentally responsible and met the retention requirements of Army Regulation 40-501, chapter 3.  The applicant was cleared for any administrative action that was deemed appropriate by his command.

8.  The applicant was notified of contemplated separation for misconduct on 4 August 1997.  After consulting with counsel the applicant requested representation by counsel and waived submitting any written statements on his own behalf.  The applicant also requested an administrative separation board hearing in his case if he was to be considered for an other than honorable discharge.

9.  The command forwarded the request for separation based on failure to follow instructions and orders, dereliction of duty, forgery, attempting to steal $400.00, stealing a check, making false official statements, stealing of government property, failing to repay just debts, disrespect to a senior NCO, and maliciously burning a servicemember’s personal property.  The separation authority, a major general, approved the request and directed separation under honorable conditions with an RE-3 reenlistment eligibility code.

10.  On 28 August 1997, the applicant was discharged with a General (Under Honorable Conditions) characterization of service in compliance with Army Regulation 635-200, paragraph 14-12c (Misconduct – Commission of a Serious Offense) in the pay grade of Private Two (E-2).  The applicant had 5 years and 8 days of creditable active federal service.

11.  Army Regulation (AR) 635-200, paragraph 14-12c, states in pertinent part, that separation is warranted if the specific circumstances of the offense authorize a punitive discharge for the same or a closely related offense under the Manual for Courts-Martial (MCM).

12.  AR 635-5-1, dated 13 August 1993, states in pertinent part, the acronym(s) SPD stands for Separation Program Designator and JKQ is the designator for “Misconduct”, this designator is under the heading of Involuntary Discharge.

13.  AR 635-5, revised Table 2-3, dated 20 September 1993, states in pertinent part, that RE-3 is the code for misconduct and may be waivable.

CONCLUSIONS:

1.  In accordance with AR 635-5, applicant’s misconduct was properly recorded on his DD Form 214 and there was no material error or injustice.  However, the RE code recorded on the applicant’s DD Form 214 is RE-4 and should be RE-3 for misconduct.

2.  In view of the foregoing findings and conclusions, it would be appropriate to correct the applicant’s records, but only as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to the individual concerned be corrected by showing that the individual’s DD Form 214, item(s) 27 (Reentry code) show RE-3.

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

BOARD VOTE:  

     cf           cs             fe        GRANT AS STATED IN RECOMMENDATION

                                                    GRANT FORMAL HEARING

                                                     DENY APPLICATION

		      Calvin M. Fowler       
		        CHAIRPERSON

INDEX

CASE ID	AR2000036416	
SUFFIX		
RECON		
DATE BOARDED	20000912	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	19970828	
DISCHARGE AUTHORITY	AR 635-200, PARA 14-12C	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  100.03	RE-4 TO RE-3	
2.		
3.		
4.		
5.		
6.