MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           19 October 2000
	DOCKET NUMBER:   AR2000047356

	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	
	Mr. David H. Keller		Analyst	

  The following members, a quorum, were present:

	Mr. Ernest W. Lutz		Chairperson	
	Mr. Christopher J. Prosser		Member	
	Ms. Tracey L. Pinson		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:  That his reentry eligibility (RE) code be changed from RE-3 to RE-1; that he be reinstated in the Regular Army; and that he receive monetary relief.

APPLICANT STATES:  In effect, that he was "wrongfully processed against criminally" while in the Army which caused the Army to "blackball" him.  A list of supporting documentation submitted by the applicant is attached.

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

With prior service in the Army National Guard, he enlisted in the Regular Army for 3 years on 23 September 1997.  Following in-processing at Fort Jackson, South Carolina, the applicant was reassigned to Fort Lee, Virginia.

During his enlistment, the applicant had personal problems concerning the mother of his children, living conditions, debt, and deaths in his family.  While stationed at Fort Lee, the applicant was a disciplinary problem and received counseling statements for multiple failures to repair, failing a physical training test, disrespect towards a noncommissioned officer, absence without proper authority, and illegal drug use.  He also received positive counseling statements on his duty performance and helpfulness.

The applicant was absent without leave (AWOL) from his unit on two occasions (24-28 April 1998 and 14-20 May 1998).  On 17 May 1998, he was charged with stealing the automobile of an acquaintance in Petersburg, Virginia.  He was apprehended by civilian police in Hopewell, Virginia with the stolen automobile on 20 May 1998 and held in jail through 27 May 1998.  On 4 June 1998, the applicant participated in a unit urinalysis test and tested positive for cocaine use. He was referred to the Alcohol and Drug Abuse Prevention and Control Program.

On 3 June 1998, the applicant's commander notified him that he was initiating action to separate him for misconduct under the provisions of Army Regulation 635-200, chapter 14.  He was advised of his rights.  He acknowledged notification and consulted with legal counsel who advised him of the impact of the discharge action.  The applicant submitted a statement in his own behalf asking to be retained on active duty.

On 30 June 1998, the separation authority waived further rehabilitative efforts and directed that the applicant be separated with a general discharge.  He was separated on 2 July 1998.  At the time of discharge, he had 8 months and 21 days of creditable service on his 3-year enlistment and 19 days of lost time due to AWOL and confinement.

The applicant petitioned the Army Discharge Review Board (ADRB) seeking a discharge upgrade.  The ADRB, after considering his case on 20 September 1999, upgraded his general discharge to fully honorable and changed the narrative reason for separation from misconduct to Secretarial Authority.  The ADRB specifically declined to change the applicant's RE-3 code.

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, to include abuse of illegal drugs, convictions by civil authorities and desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed.  Army policy states that a discharge under other than honorable conditions is normally considered appropriate, but a general discharge under honorable conditions or an honorable discharge may be granted.

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 the eligibility criteria, policies, and procedures for enlistment and processing into the RA and the USAR.  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 applies to persons not qualified for continued Army service, but the disqualification is waivable.  Certain persons who have received nonjudicial punishment and/or court-martial convictions are 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.

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 tested positive for cocaine on a random urinalysis, was AWOL on two occasions, and took an acquaintance's motor vehicle without permission.  His company commander recommended that he be separated for misconduct under chapter 14, Army Regulation 635-200.

3.  The applicant’s discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge was commensurate with the applicant's overall record of military service.

4.  The ADRB, taking cognizance of the applicant's personal problems and the positive recommendations from various work supervisors, upgraded his discharge to fully honorable as a matter of equity.  Although that board changed the applicant's narrative reason for separation from misconduct to Secretarial Authority, it specifically declined to change his reentry eligibility (RE) code from RE-3 to RE-1.

5.  This Board finds no reason in the record, nor has the applicant provided any reason to change the ADRB's action regarding his RE code or to reinstate him on active duty in the Regular Army.  There is, therefore, no reason to provide a recommendation for monetary relief.

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

__ewl___  __cjp____  __tlp ____  DENY APPLICATION

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

List of Supporting Documentation

1.	A 1 December 1999 letter.
2.	A copy of a 9 November 1999 letter from the Army Crime Records Center informing the applicant that the FBI had removed a charge [charge 1] of wrongful use of cocaine from his criminal record.
3.	A copy of his DD Form 214, Certificate of Release or Discharge From Active Duty, as corrected by the ADRB.
4.	A copy of a 1 June 2000 memorandum of support from his DCARNG commander.
5.	A copy of a 2 July 1998 memorandum of support from his AD company commander.
6.	A copy of the 20 September 1999 OSA Form 172, Case Report and Directive, from the ADRB upgrading his discharge and changing the narrative reason for separation.
7.	A copy of an undated, handwritten, 2-page letter from the applicant's wife.
8.	A copy of a 3 June 1998 handwritten letter from the applicant's wife.
9.	A copy of a 4 June 1998 prescription.
10.	A copy of an automobile Certificate of Title from New Jersey for a 1995 Dodge.
11.	A copy of a real estate settlement document dated 29 August 1997.
12.	A copy of a funeral announcement dated 18 October 1997.
13.	A copy of a funeral announcement dated 17 March 1998.
14.	A copy of a 3-page New Jersey court order dated 13 April 1998.
15.	A copy of an undated DD Form 293 from the applicant.
16.	A copy of a 26 June 1998 1st End to a memorandum to separate the applicant for misconduct.
17.	A second copy of Item 2.
18.	A copy of a 12 June 1998 memorandum from the applicant to the Commander, 23rd Brigade, Subj:  To Be Retained in the Army.
19.	A copy of a 1 July 1997 letter from a doctor treating the applicant's wife.
20.	A copy of a 9 June 1998 memorandum of support for the applicant.
21.	A copy of an 8June 1998 memorandum of support for the applicant.
22.	A copy of an 8 June 1998 memorandum of support for the applicant from his NCOIC.
23.	A copy of a 25 June 1998 memorandum of support for the applicant.
24.	A copy of an 11 June 1998 memorandum of support for the applicant.
25.	A copy of a 6 June 1998 memorandum of support for the applicant.
26.	A copy of a 20 March 1997 DD Form 214 releasing the applicant from ADT as a National Guardsman.
27.	A second copy of Item 25.
28.	A partial copy of his 2 July 1998 DD Form 214 (GD).
29.	A second copy of Item 3.
30.	A second copy of Item 7.
31.	A second copy of Item 8.
32.	A second copy of Item 9.
33.	A second copy of Item 10.
34.	A second copy of Item 11.
35.	A second copy of Item 12.
36.	A second copy of Item 13.
37.	A third copy of Item 12.
38.	A second copy of Item 14.
39.	A third copy of Item 13.
40.	A second copy of Item 26.
41.	A copy of DD Form 4/1-2, Enlistment/Reenlistment Document.
42.	A copy of a XX June 1998 2nd End to a memorandum, Subj: Separation Action UP AR 635-200, Chapter 14.
43.	A second copy of Item 16.
44.	A copy of a 26 June 1998 memorandum, Subj:  Separation Action UP AR 635-200, Chapter 14.
45.	A copy of an 11 June 1998 memorandum from the applicant to his commander acknowledging notification of intent to separate.
46.	A copy of a 3 June 1998 memorandum from his commander to the applicant notifying him of intent to separate.
47.	A copy of Order Number 181-0181, Fort Lee, VA, separating the applicant.

INDEX

CASE ID	AR2000047356	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001019	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	100.0300	
2.		
3.		
4.		
5.		
6.