MEMORANDUM OF CONSIDERATION

IN THE CASE OF: 

	BOARD DATE:           7 November 2000
	DOCKET NUMBER:   AR2000042125

	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		Director	
	Ms. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Mr. George D. Paxson		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Ms. Paula Mokulis		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 eligibility (RE) code be changed to allow reenlistment.

APPLICANT STATES: In essence, that he has no prior record of misconduct. 

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

That prior to the period of enlistment under review, he served honorably in the Regular Army (RA) from 5 June 1988-28 March 1988.  He was issued a DD form 214 (Certificate of Release or Discharge) for this period of service.  He also served honorably from 5 July 1988-9 June 1993.  On 10 June 1993, he reenlisted in the RA for a period 4 years in his previous military occupational specialty (MOS) 92Y (Unit Supply Specialist). 

On 23 June 1994, nonjudicial punishment (NJP) was imposed against the applicant under the provisions of Article 15, Uniform Code of Military Justice, for wrongfully using a controlled substance (marijuana) between 25 March and 
25 April 1994 and for wrongfully using cocaine between 15 and 25 April 1994.  His punishment included reduction from pay grade E-5 to pay grade E-4, forfeiture of pay, extra duty and restriction.

On an unknown date the commander notified the applicant that he was being recommended for discharge under the provisions of Army Regulation 635-200, chapter 14, for commission of a serious offense with a general discharge (GD), under honorable conditions. 

On 7 December 1994, in a memorandum to his commander, the applicant acknowledged that he had made a mistake and he requested an honorable discharge (HD).  He felt a HD would give him a fair start on the outside.  He felt that anything less than a HD would limit his opportunities and cause his family to suffer.  Additionally, he stated that he had served in the military for approximately 9 years and 6 months and during that time, he had always taken pride in his work and exceeded the standards.

The applicant consulted with defense counsel and he was advised of the basis for the contemplated action and its effects, and the rights available to him.  He waived further representation by legal counsel and he did not submit a statement in his own behalf at that time.  He was entitled to consideration or a personal appearance before a board of officers.  However, he voluntarily waived consideration of his case by an administration separation board contingent upon him receiving a GD.

On 15 December 1994, the intermediate commander recommended separation with a GD.

On 21 December 1994, competent authority accepted the conditional waiver and approved the recommendation and directed the issuance of a GD, for misconduct, under the provisions of chapter 14, Army Regulation 635-200.  

On 21 February 1995, the applicant was discharged.  He had completed 6 years, 
7 months, and 17 days of creditable active military service for the enlistment under review and 2 years 9 months and 24 days of prior service.  He was assigned an RE code of RE-3.

On 15 May 2000, the Army Discharge Review Board (ADRB) denied the applicant’s request for an upgrade of his discharge.  It was not within the purview of the ADRB to change the RE code.

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 applicant’s for enlistment.  That chapter includes a list of Armed Forces RE codes and RA RE codes. 

RE-3 applies to persons not qualified for continued Army service, however, the disqualification is waivable.  Local recruiting personnel have the responsibility for determining whether an individual meets the current enlistment criteria and that recruiting personnel are required to process a request for waiver.  There is no evidence that he has ever requested such a waiver.

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, convictions by civil authorities, desertion or absence without leave.  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 considered appropriate, but a GD or a HD is authorized.

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.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

3.  There appears to be no basis for removal or waiver of the disqualification which established the basis for the applicant’s RE code.  The assigned RE code was and still is appropriate.

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

5.  The applicant, as a noncommissioned officer (NCO), had the duty to support and abide by the Army's drug policies.   He violated the Army's drug policy by possessing and using illegal drugs.  Therefore, he compromised the special trust and confidence placed in him as a NCO.  By abusing illegal drugs, he knowingly risked his military career and this misconduct diminished the quality of his service below that meriting a change in his discharge or RE code.

6.  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

__gdp___  ___mhm_  __pm____  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000042125	
SUFFIX		
RECON		
DATE BOARDED	20001107	
TYPE OF DISCHARGE	(GD)	
DATE OF DISCHARGE	119950221	
DISCHARGE AUTHORITY	AR635-200, Chapter 14  	
DISCHARGE REASON	A67.70	
BOARD DECISION	(NC)	
REVIEW AUTHORITY	Director	
ISSUES         1.	144.6770	
2.		
3.		
4.		
5.		
6.