MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            25 July 2000
	DOCKET NUMBER:   AR200037138

	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.

	Mr. Carl W.S. Chun			
	Ms. Antoinette Farley		Analyst	

  The following members, a quorum, were present:

	Mr. Ted S. Kanamine		Chairperson	
	Mr. Stanley Kelley		Member	
	Mr. John H. Kern		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:  Correction of appropriate military records to show a reentry eligibility (RE) code and type of discharge to be upgraded from an general discharge, under honorable conditions to honorable discharge (HD), which would allow reenlistment.  In effect, this constitutes a request for removal or waiver of those disqualifications which preclude reenlistment.

APPLICANT STATES:  He feels that after receiving an HD certificate from the Ohio Army National Guard that this proves he can be worth more than a general discharge, under honorable conditions from the U.S. Army.  He provides a copy of his DD Form 293 (Application for The Review of Discharge or Dismissal From The Armed Forces of The United States ), a copy of VA Form 22-1990 (Application for Veterans Affairs Education Benefits), copies of DD Form 214’s (Certificate of Release or Discharge from Active Duty) issued in July 1994, January 1996 and April 1999.  He also submits copies of his NGB Form 22’s (Report of Separation and Record of Service) issued in December 1997 and July 1994.

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

That he had a period of service in the Kansas Army National Guard (KSARNG) from 19 November 1993 to 8 July 1994, which included an initial active duty for training (IADT) period, from which he was discharged under the provisions of chapter 11,  Army Regulation (AR) 635-200 by reason of entry level performance and conduct with an uncharacterized discharge.  He had 1 month and 16 days active service and 7 months and 20 days of active and inactive service as a member of the KSARNG. His discharge at that time was from both the KSARNG and as a Reserve of the United States.

On 16 May 1995, he enlisted in the (KSARNG) for a period of 7 years and 
18 weeks. On or about 28 December 1995, he voluntarily transferred from the KSARNG to the Ohio Army National Guard (OHARNG).

During his period of service in the KSARNG, he began an active period of service for training.  This period of active service was from 15 August 1995–25 January 1996, which totaled 5 months and 11 days.  His separation document (DD Form 214) shows that he was released from active duty and returned to the OHARNG with an uncharacterized discharge at the completion of his required service.  He had been awarded military occupational specialty (MOS) 92A (Automated Logistics Specialist).

The evidence of record concerning the details of his service in the OHARNG is unclear.  It would appear that upon his return from his MOS training in January 1996, he was assigned to a maintenance unit in Stow, Ohio.  On some date in 
the next 16 months he was advanced to the rank of specialist, pay grade E-4.

His records contain several retroactive orders issued by the OHARNG which transferred him from his unit in Stow, Ohio, to the Ohio Regional Training Institute in Columbus, Ohio on 1 April 1997 to attend an officer candidate school.  This was for the period 1 April 1997 to 19 August 1998 (presumably this was only for regular drilling periods).  He was concurrently promoted to the rank of staff sergeant, pay grade E-6.  On 1 July 1997, he was terminated from the officer training program and returned to his unit.  This action appears to have been without prejudice (not for disciplinary reasons) and he was administratively reduced to pay grade E-4.

His records next show that he was discharged on 8 December 1997 from the OHARNG and as a Reserve of the United States under the provisions of paragraph 8-26a2, National Guard Regulation 600-200 for the purpose of enlistment in another component.  His rank at that time was specialist, pay grade E-4.  He was credited with 2 years, 6 months and 23 days of service in the OHARNG from 
28 December 1995 until 8 December 1997.  

However, other evidence of record shows that on 12 May 1997 he entered active duty for an unknown period of service and his service component is shown as the Regular Army.  His entry rank is unknown, but he performed duties in MOS 92A and was serving at Fort Sill, Oklahoma, at the time of his discharge.  He was reduced to pay grade E-1 on 13 November 1998.

Discharge proceedings are not a matter of record.  However, his DD Form 
214 shows that on 8 April l999, the applicant was discharged with a GD under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of misconduct (pattern of misconduct).  He was credited with 1 year, 10 months and 
27 days active service and no lost time.  He was also credited with 6 months and 
25 days prior active service and 2 years, 7 months and 16 days inactive service.  His awards and decorations included the National Defense Service Ribbon and the Army Service Ribbon.  He was assigned an RE Code of RE-3.  

On 18 June 1999, the applicant requested a discharge upgrade through the Army Discharge Review Board (ADRB).  After a thorough review, the ADRB denied his request on 25 August 1999.

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 provisions of the 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 code applies to persons not qualified for continued Army service, but the disqualification is waivable.  Individuals discharged under the provisions of chapters 9, 10, 13, and 14 of Army Regulation 635-200 are normally assigned an RE code of RE-3.  RE-3 codes may be waived in selected cases by recruiting officials based on the needs of the service.

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 this requirement.

2.  While the facts and circumstances surrounding the applicant’s discharge are not a matter of record, the applicant has failed to provide any evidence that his administrative separation was not accomplished in compliance with applicable regulations with no indication of procedural errors, which would have jeopardized his rights.  Therefore, the Board presumes regularity in the discharge process.  

3.  It would appear that if the applicant was discharged for a pattern of misconduct, his command was well within their authority to direct a separation with a GD.  Again, there is no probative evidence that his characterization of service was not proper or equitable.  

4.  The applicant was separated and assigned an RE code in accordance with regulations then in effect.

5.  There is no basis for removal of the RE code from the applicant's record. The disqualification upon which the code was based, however, can be waived for reenlistment purposes. 

6.  The Board notes the applicant’s two prior periods of service in the KSARNG and the OHARNG.  While this service is commendable, it does not overcome the discharge action under review.  In fact, his discharge from the KSARNG was caused by his inability to adjust to military duties in the 1994 and 1995.  Therefore, the Board concludes that the applicant’s National Guard service does not overcome his discharge from the Regular Army in 1999.  

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

__tsk____  __sk____  __jhk____  DENY APPLICATION

    Carl W.S. Chun
    Director, Army Board for Correction
    Director

INDEX

CASE ID	AR1999028327	
SUFFIX		
RECON		
DATE BOARDED	20000725	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19910405	
DISCHARGE AUTHORITY	AR 635-200/CHAP 14	
DISCHARGE REASON	A60.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY	ABCMR	
ISSUES         1.	A67.10	
2.	A133.00	
3.	A03.00	
4.	A123.01	
5.		
6.