MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           28 February 2002                   
	DOCKET NUMBER:   AR2001063192

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Ms. Celia L. Adolphi		Member	
	Mr. John T. Meixell		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:  Correction of appropriate military records to show a reentry (RE) code which would allow reenlistment.  In effect, this constitutes a request for removal or waiver of those disqualifications which preclude reenlistment.

APPLICANT STATES:  That he would like to immediately reenter the Army.  His mother was seriously disabled in a car accident and his grandmother was seriously ill at the time he requested a compassionate reassignment yet his captain denied the request even with substantiating letters of support.  On the Monday before Thanksgiving Day of 2000, a Red Cross letter was sent to his commander regarding the fact his godmother/aunt had liver cancer.  She died two weeks later.  On Thanksgiving Day, he had the weekend off so he asked his commander for permission to go home to Colorado to see his godmother, his mother, and his wife, whom he had sent on to Colorado.  His commander denied his request.  Since he had weekend leave, he departed anyway and saw his aunt, his mother, and his wife.  Upon returning after the weekend, his commander asked what he did during the weekend and, after honestly telling him he had gone to Colorado, his commander indicated he would be facing an Article 15.  He believes this commander was prejudiced against him and that’s why he denied his request.  His mother’s condition is now stabilized and he does not have further medical concerns about her situation that would prevent him from serving.  Supporting evidence is as listed on the DD Form 149.  

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

He enlisted in the Regular Army on 28 September 1999.  He completed basic training and advanced individual training and was awarded military occupational specialty 91B (Medical Specialist).  On or about 31 March 2000, he was assigned to William Beaumont Army Medical Center (WBAMC), El Paso, TX.

On 30 August 2000, the applicant accepted non-judicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for failing to go to his appointed place of duty.

On 17 October 2000, the applicant underwent a mental status evaluation.  He was cleared for any administrative action deemed appropriate by his command.

On 4 November 2000, the applicant was notified that his installation driving privileges had been suspended as a result of his being apprehended for driving while intoxicated.  He was informed that if he was found guilty of an intoxicated driving charge, his installation driving privileges would be revoked for one year.  

On 8 November 2000, the applicant accepted NJP under Article 15, UCMJ for operating a passenger car while drunk.  His punishment was a reduction to pay grade E-1, forfeiture of $502.00 pay for 2 months (suspended for 6 months), and to perform extra duty for 45 days.

On or about 8 November 2000, the applicant requested a compassionate reassignment to Fort Carson, CO.  Page 2 of the Application for Compassionate Actions, DA Form 3739, is not available.  The earliest letter of support provided with this request, a letter from a WBAMC chaplain, is dated 13 September 2000.
Approval/disapproval action, if taken, is not available.

On 28 November 2000, the applicant was counseled by his commander after the applicant went to Colorado from 22 – 27 November 2000 after he was ordered not to, for failing to show up for duty during the same time period, and driving on post on 22 November 2000 after he was notified that his post driving privileges were revoked.  The commander stated that on 22 November 2000 the applicant was told he could not get emergency leave to go to Colorado unless the applicant could provide documentation that would show his aunt was acting in loco parentis.  He went anyway.  He failed to report for extra duty during the time he was gone and on 27 November 2000 he failed to report to his ward for work.  His first sergeant had contacted him and told him to return to El Paso and to duty and the applicant refused to do so.  In addition, he disobeyed a general order by driving on post to the Army physical fitness test site while his post driving privileges were suspended.

On 29 November 2000, the applicant was involved in a traffic accident in the WBAMC parking lot.  He was found to be at fault for failing to yield the right of way and the investigation revealed his installation driving privileges had been revoked.  

On 5 December 2000, the applicant’s suspended forfeiture was vacated.

On 11 December 2000, the applicant was notified that separation action under the provisions of Army Regulation 635-200, chapter 14 was being initiated for pattern of misconduct.  

On 11 December 2000, the applicant acknowledged notification, consulted with legal counsel, and was advised of the basis for the contemplated separation and its effects and his rights.  He acknowledged that he understood he would be ineligible to apply for enlistment in the Army for a period of 2 years after 

discharge.  He submitted a statement in his own behalf.  He stated that his family back home had been ill.  He made some bad decisions in the past and he tried to correct them.  He felt if he had another chance he would be a stand-up soldier.  

On 20 December 2000, the appropriate commander approved the recommendation and directed he receive a general discharge under honorable conditions.

On 3 January 2001, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 14, misconduct, with a general under honorable conditions characterization of service.  He had completed 1 year, 3 months, and  6 days of creditable active service and had no lost time.  He was given a separation code (SPD) of JKA (involuntary discharge under Army Regulation 635-200, paragraph 14-12b, pattern of misconduct) and an RE code of 3.

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.

The Separation Program Designator Code (SPD)/Reentry (RE) Code Cross-Reference Table in Army Regulation 635-5-1 states that when the SPD is JKA then the RE code 3 will be given.

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 U.S. 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-3 applies to persons not qualified for continued Army service, but the disqualification is waivable.  Soldiers separated for misconduct fall into this category.

Recruiting personnel have the responsibility for initially determining whether an individual meets current enlistment criteria.  They are required to process a request for waiver under the provisions of chapter 4, Army Regulation 601-210, Regular Army and Army Reserve Enlistment Program. 

Army Regulation 614-200 governs selection and assignment of enlisted personnel.  In pertinent part, it states that compassionate actions are requests from the individual soldier when personal problems exist.  Soldiers may be reassigned as a result of an approved compassionate reassignment.  The request is made using a DA Form 3739.  Commanders who are general court-martial convening authorities (GCMCAs) will review each application to determine that the established criteria has been met.  If the standard for a change in assignment has not been met, the GCMCA will not approve the request.  There must be a valid military occupational specialty and grade authorization at the requested installation.

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.  The applicant has failed to submit evidence that would satisfy this requirement.

2.  The complete compassionate reassignment packet is not available.   However, the Board notes that his letter requesting such reassignment is dated  8 November 2000.  This was days after he received his second Article 15 and shortly before his 28 November 2000 counseling concerning additional misconduct.  His second Article 15 was accepted on 4 November 2000.  He should have been fully aware that his punishment included 45 days extra duty.  He does not convince the Board that this 45-day period excluded Thanksgiving and that he had Thanksgiving Day weekend leave.  Therefore, it appears that his command rightly suspended processing his request for compassionate reassignment pending the processing of his separation for misconduct.

3.  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.  Considering the reason for his separation, the RE code of 3 given was and still is appropriate.

4.  Since enlistment criteria does change, and since an individual has the right to apply for a waiver, the applicant should periodically visit his local recruiting station to determine if he should apply for a waiver.

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

__rvo___  __cla___  __jtm___  DENY APPLICATION

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

INDEX

CASE ID	AR2001063192	
SUFFIX		
RECON		
DATE BOARDED	20020228	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	100.03	
2.		
3.		
4.		
5.		
6.