PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           29 March 2001                   
	DOCKET NUMBER:   AR2000043598

	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	
	Mrs. Joyce A. Hall		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Lester Echols		Member	
	Mr. Christopher J. Prosser		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, in effect, correction of appropriate military records to show a reentry eligibility (RE) code, which would allow reenlistment.  In effect, this constitutes a request for removal or waiver of those disqualifications, which preclude reenlistment.  Also, expungement of the Article 15s from his record.

3.  The applicant states in effect, that he enlisted in the New York State Army National Guard in August 1977, without a waiver of his RE-Code and has served continuously in the Guard until 12 August 1997.  After receiving his honorable discharge from the Guard he enlisted in U.S Army Reserve on 13 August 1997, without a waiver and is presently serving in the Reserve.  He would like to have the Article 15 he received while on active duty (October 1964) expunged from his service record.  He was never afforded the opportunity of legal counsel before agreeing to accept punishment under Article 15.  He was discharged under the authority Army Regulation 635-209, (Unsuitable).  He was suitable then and he is definitely suitable now.  During his active duty period he was 18 years old. He was never given legal counseling or advised that legal counsel was available, before he waived his rights.  He has a total of 23 years of combined active, Guard and Reserve service and has attained the rank of Staff Sergeant E-6.  The applicant submits a copy of his Report of Separation from Active Duty (DD Form 214 and copies of his reserve enlistment documents in support of his application.

4.  The applicant’s military records show that he was born on 3 December 
1945.  He completed 12 years of formal education.  On 6 July 1964, the applicant was inducted into the Army for 2 years.  He was assigned to Fort Gordon, Georgia for basic combat training and advanced individual training (AIT). 

5.  On 18 October 1964, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code if Military Justice (UCMJ), for failure to repair.  His imposed punishment was 14 days restriction and extra duty.

6.  On 26 October 1964, the applicant accepted NJP for disobeying a lawful order not to bring alcoholic beverages into the company area.  His imposed punishment was a forfeiture of $10.00 pay, 14 days restriction and extra duty.

7.  On 5 November 1964, the applicant was evaluated by a psychiatrist who diagnosed him as having an inadequate personality.  He had no disqualifying mental defect sufficient to warrant disposition through medical channels.  He was considered mentally competent to participate in board proceedings.

8.  On 9 November 1964, the commander notified the applicant that he was being recommended for discharge under the provisions of Army Regulation 
635-209, for unsuitability with a general discharge.  The commander’s recommendation was based on the applicant’s lack of motivation and a lack of self-understanding.  

9.  On 10 November 1964, the applicant was advised by legal counsel of the basis for the contemplated separation action and the rights available to him.  The applicant waived personal appearance, consideration, and representation by counsel before a board of officers.  He was afforded the opportunity to submit statements in his own behalf, but declined to do so.

10.  On 16 November 1964, a medical examination found the applicant qualified for separation.

11.  On 17 November 1964, the appropriate authority approved the recommendation and directed the issuance of a General Discharge Certificate.

12.  On 4 December 1964, the applicant was discharged in pay grade E-2, under the provisions of Army Regulation 635-209, unsuitability, with a general discharge.  He completed 4 months and 29 days of creditable active service.  He was given a reentry code of RE-3.

13.  On 21 May 1965, the Army Discharge Review Board (ARBA) denied the applicant’s request for an upgrade of his discharge.

14.  On 21 July 1977, the applicant’s discharge was upgraded to honorable under the Department of Defense Discharge Review Program.

15.  On 31 August 1977, the applicant enlisted in the New York Army National Guard (NYARNG) in pay grade E-2.  He was honorably discharged on 13 August 1997.  On an unknown date the applicant enlisted in the U.S. Army Reserve.
A telephone conversation with Headquarters, Army Reserve Personnel Center, St Louis on 6 March 2001, indicated that the applicant is presently serving in the 
U.S. Army Reserve.  However, the applicant’s reserve file is not available. 

16.  Army Regulation 635-209 set forth the basic authority for the separation of enlisted personnel for unsuitability.  That regulation provided, in pertinent part, that a member with a character or behavior disorder, disorder of intelligence, or
transient personality disorder due to acute or special stress and was unlikely to develop sufficiently to participate in further military training and or become a satisfactory soldier, would be discharged for unsuitability.

17.  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.

18.  RE-3 applies to persons not 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 chapters 9, 10, 13, and 14 of Army Regulation 635-200 are assigned and RE-3.

19.  Army Regulation 600-37 sets forth policy and procedures to authorize placement of unfavorable information about Army members in individual official personnel files, and ensure that the best interest of both the army and the soldier are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files.  In pertinent part, it states that once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  Only letters of reprimand, admonition or 
censure and records of nonjudicial punishment under Article 15, UCMJ may be the subject of an appeal for transfer to the restricted fiche.  Such documents may be appealed on the basis of proof that their intended purpose has been served and that their transfer will be in the best interest of the Army.  The burden of proof rests with the recipient to provide substantial evidence that these conditions have been met.

CONCLUSIONS:

1.  The Board concludes that the intended purpose of the applicant‘s Article 
15s have been served.  Those instances of misconduct occurred during his initial induction into the Army 37 years ago.  He was separated from active duty in pay grade E-2.  In 1977, he enlisted in NYARNG in pay grade E-2 and served successfully earned steady promotions until he was honorably discharged in
1997.  He immediately enlisted in the U.S. Army Reserve and has attained the rank of Staff Sergeant E-6.

2.  The Board recognizes the applicant’s good service subsequent to his separation from active duty in 1964.  The Board concludes that the impediment that these documents may prove to any further promotion should no longer be so prominent in his records and should be moved to the restricted fiche .

3.  The Board also concludes that it would not be appropriate to make any changes to the applicant’s reentry code.  The applicant was discharged and assigned a reentry code in accordance with regulation then in effect.

4.  There is no basis for removal of the RE code from the applicant’s record.  The disqualification upon which the code was based, however, was waivable for reenlistment purposes provided all qualifications were met.  

5.  In the absence of the applicant’s Guard and Reserve information the Board can only assume that the qualifications were met and that the reentry code was waived.

6.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by removing all documents related to the applicant’s two Article 15s from the performance fiche of his OMPF and transferring them to the restricted fiche of his OMPF.

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

BOARD VOTE:  

__jns___  ___le___  __cjp___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			John N. Slone
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000043598	
SUFFIX		
RECON		
DATE BOARDED	20010329	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	100.0300	
2.	126.0500	
3.		
4.		
5.		
6.