MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  7 December 2000
	DOCKET NUMBER:  AR2000043964

	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.  Joyce A. Wright		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor		Chairperson	
	Mr. Ernest W. Lutz		Member	
	Mr. John P. Infante		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 discharge be revoked, that he 
be promoted to the highest grade he would have attained with 20 years of service, and immediate retirement with back pay and allowances.

APPLICANT STATES:  In effect, that his name was forged on his request for early separation, that he was illegally assigned an RE (Reenlistment) Code of
RE 4 and that there was no basis for a bar to reenlistment.  He goes on to state that he was ordered to sign the 3rd Endorsement of his request for discharge.  In support of his application he submits a copy of his DA Form 2166 (Enlisted Evaluation Report), a copy of his DD Form 4c (Enlistment or Reenlistment Agreement), a copy of his request for early separation, dated 1 December 1986,
a copy of his DD Form 214 (Certificate of Release or Discharge) and a copy of orders awarding him the Good Conduct Medal (3rd Award) and the Driver and Mechanics Badge with Bar.

EVIDENCE OF RECORD:  The applicant's military records show he entered active duty on 20 February 1979 as a motor transport operator.  He continued to serve until he was honorably discharged on 22 November 1982 in order to reenlist.  He reenlisted on 23 November 1982.

He was promoted to the rank of Sergeant/E-5 on 2 June 1983.  

On 11 April 1986, he was punished under article 15, UCMJ for disobeying a lawful order from a noncommissioned officer.  His punishment consisted of
3 days extra duty and restriction.

The applicant provided a copy of his Enlisted Evaluation Report for the period April 1986 through December 1986.  This report indicated that the applicant was performing below the standards of a noncommissioned officer, that he was counseled on several occasions regarding his shortcomings and attitude which failed to improve, that he was incapable of safely operating a motor vehicle and
that his failure at the Primary Leadership Course (PLC) during the first week was
due to his attitude and his academic shortcomings.  The report also indicated that the applicant should be eliminated from the service for failure to meet Army standards.

On 1 December 1986, the applicant submitted a request for early separation 
prior to his expiration of term of service (ETS) under the provisions of Army Regulation 635-200, paragraph 16-5, due to a locally imposed bar to reenlistment.  The request was approved by the appropriate authority on 
10 December 1986.

The applicant was discharged on 29 December 1986 under the provisions of
AR 635-200, paragraph 16-5(b) due to a locally imposed bar to reenlistment.
He had completed 7 years, 10 months, and 10 days of creditable service and was issued an RE code of “4”.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 16 covers discharges caused by changes in service obligations.  Paragraph 16-5 applies to personnel denied reenlistment and provides that soldiers who receive DA imposed or locally imposed bars to reenlistment, and who perceive that they will be unable to overcome the bar, may apply for immediate discharge.  Incident to the request the member must state that he understands that recoupment of unearned portions of any enlistment or reenlistment bonus is required and that later reenlistment is not permitted.

Army Regulation 601-280 prescribes the eligibility criteria and options available in the Army Reenlistment Program.  Chapter 6 of that regulation provides for barring from reenlistment individuals whose continued active duty is not in the best interest of the military service.  This chapter specifies that bars will be used when immediate administrative discharge from active service is not warranted.  Examples of rationale for reenlistment disqualification are, but are not limited to, 
AWOL, indebtedness, recurrent nonjudicial punishment, slow promotion
progression, no demonstrated potential for future service, and substandard performance of duties.

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 
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 Regular Army RE codes.

RE–4 applies to persons not qualified for continued service by virtue of being separated from the service with non-waivable disqualification such as misconduct.

Army Regulation 635-200, paragraph 12-4, implements Title 10, United States Code, Section 3914 which governs 20 year retirement by a soldier of the Regular Army, the Army National Guard of the United States and the U.S. Army Reserve. In pertinent part, the regulation provides that a request for retirement may be submitted by a soldier who has completed 20 years, but less than 30 years, of active Federal service in the U.S. Armed Forces.  Approval of the request for retirement will be at the discretion of the Secretary of the Army.

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.  The Board notes the applicant’s contentions that his name was forged on his request for early separation and that he was ordered to sign the 3rd Endorsement of his request for discharge.  However, the applicant has provided no evidence to support his contentions.

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

3.  The locally imposed bar to reenlistment was imposed in compliance with applicable regulation with no indication of procedural errors which would tend to jeopardize his rights.  The Board also notes that the applicant voluntarily requested early separation because he could not overcome the bar to reenlistment.  Therefore, there is no basis to reinstate the applicant.

4.  The applicant’s records do not show that he was ever considered or recommended for promotion to Staff Sergeant/E-6 prior to his separation.  Therefore, he is not entitled to correction of his military records to show that he was promoted to Staff Sergeant/E-6. 

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

6.  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.

7.  There is no evidence the applicant met the required years of service for 
retirement.  Therefore, he is not entitled to immediate retirement with back pay and allowances. 

8.  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.

9.  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

__ro____  __el____  __ji____  DENY APPLICATION

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

INDEX

CASE ID	AR2000043964	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001207	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	19861229	
DISCHARGE AUTHORITY	AR .635-200  C, 16	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  192		
2.		
3.		
4.		
5.		
6.