MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           01 NOVEMBER 2001
	DOCKET NUMBER:   AR2001058676

	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. Gale J. Thomas		Analyst	

  The following members, a quorum, were present:

	Mr. Walter T. Morrison		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. Curtis L. Greenway		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 DD Form 214 (Certificate of Release or Discharge from Active Duty), item 27 (Reentry Code) be changed to allow his reentry into military service.

APPLICANT STATES:  In effect, that he was unaware of what a reentry code was, and if he had known he would not have accepted the type of discharge he was offered.   

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

The applicant enlisted in the Regular Army on 18 June 1992 for a period of
4 years.  

He was promoted to the pay grades of E-3, E-4 and E-5 on 1 December 1993, 
1 June 1995 and 1 January 1997, respectively.

On 3 October 1997 he accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, for violating a lawful general order, by wrongfully consuming alcohol; committing sodomy with a PFC; having sexual intercourse with a PFC and PV2, three specifications; and knowingly fraternizing with a PFC and PV2, three specifications.  His punishment was reduction to pay grade E-4, extra duty and a forfeiture (suspended).  

On 27 January 1998, the applicant's unit commander notified him that he was initiating action to separate him under the provisions of Army Regulation 635-200, Chapter 14, for misconduct-commission of a serious offense, with a general, under honorable conditions discharge.

On 27 January 1998, having been advised of his rights by legal counsel, the applicant authenticated a statement with his initials and signature in which he acknowledged notification of his commander's intent, requested consulting counsel, elected not to submit statements on his own behalf, and indicated that he understood the ramifications of receiving a less than fully honorable discharge.  The unit commander subsequently recommended his separation from the service.

On 4 February 1998, the appropriate separation authority waived further rehabilitation efforts and directed that the applicant be discharged with a characterization of service of general, under honorable conditions.

On 12 February 1998, the applicant was discharged under the provisions of the Army Regulation 635-200, Chapter 14, for misconduct.  His DD Form 214 indicates he had a total of 5 years, 7 months and 25 days of active military service, and was assigned the reentry code "4".
On 18 June 2001, the Army Discharge Review Board (ADRB) denied the applicant's request for an upgrade of his discharge.

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.  Army policy states that an under other than honorable conditions discharge is normally considered appropriate, but a general discharge under honorable conditions or an honorable discharge may be granted.

Army Regulation 635-5 establishes the standardized policy for preparing and distributing the DD Form 214.  In pertinent part, it directs that the regulatory authority authorizing the separation will be entered in item number 25 of the DD Form 214.  Item number 26 will contain the separation code, as shown in Army Regulation 635-5-1 based on the regulatory authority, and item 27 will contain the reentry code authorized by Army Regulation 601-210.

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-4 applies to persons separated from their last period of service with a  nonwaivable disqualification.  In the applicant's case he was separated from his period of service in pay grade E-4 with more than 5 years of active service which is a nonwaivable disqualification for reenlistment purposes, hence the applicant received an RE-Code 4.

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 to show that there was an error or injustice in this case.

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.
3.  The applicant's DD Form 214 accurately reflects the appropriate reentry code of " 4" in item number 27.  The applicant was separated from active duty in the pay grade of E-4, with more than 5 years of active service and was therefore ineligible for reenlistment.  The applicant's desire to return to military service does not serve as a basis to remove or change the code.

4.  The actions by the Army in this case were proper, and there is no doubt to be resolved in favor of the applicant.

5.  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

__WTM__  __AAO__  __CLG   _  DENY APPLICATION

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

INDEX

CASE ID	AR2001058676	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20011101	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	112.00	
2.		
3.		
4.		
5.		
6.