MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           14 January 2003
	DOCKET NUMBER:   AR2002074152

	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. Robert J. McGowan		Analyst	

  The following members, a quorum, were present:

	Ms. Margaret K. Patterson		Chairperson	
	Ms. Jennifer L. Prater		Member	
	Ms. Mae M. Bullock		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 General Discharge (GD) be upgraded to an Honorable Discharge and that his retention (reentry, or RE) code be changed.

APPLICANT STATES:  That his RE code is unfair, and that the punishment he received does not fit the mistake he made.  He indicates that he has provided evidence with his application, but none was received.

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

He enlisted in the Regular Army for 4 years and 17 weeks on 8 May 1996.  Following completion of all required military training, he was awarded military occupational specialty (MOS) 11B, Infantryman, and sent to Fort Lewis, Washington.

The applicant's military records reflect that he committed numerous disciplinary infractions, including:  use of marijuana for which he accepted a field grade nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice; missing formation for which he accepted a company grade NJP; being absent without leave (AWOL) for which he accepted a summarized NJP; being AWOL for which he was convicted by a summary court-martial; and drunk driving for which he was administered an administrative general officer letter of reprimand.  In addition, he received 11 counseling statements for various military violations.

On 4 October 1999, the applicant's company commander initiated action to separate him under the provisions of chapter 14, Army Regulation (AR) 635-200, for misconduct.  The commander indicated that he was recommending that the applicant receive a GD.  The applicant acknowledged notification of the proposed action and consulted with legal counsel who advised him of the ramifications of a GD under chapter 14, AR 635-200.  The applicant received a mental status evaluation and a physical examination and was cleared for administrative separation action.

On 12 October 1999, the applicant's brigade commander directed that he be separated from the Army prior to the expiration of his term of service by reason of commission of a serious offense under the provisions of chapter 14, Army Regulation (AR) 635-200.  He directed that the applicant receive a GD.  Accordingly, on 29 October 1999, the applicant was separated with a GD under the provisions of AR 635-200, paragraph 14-12c(2), by reason of misconduct.  He had 3 years, 4 months, and 22 days of creditable service and 30 days of lost time.  His DD Form 214, Certificate of Release or Discharge From Active Duty, showed the separation authority as "AR 635-200 CHAPTER 14-12C(2)," the separation code as "JKK," the RE code as "4," and the narrative reason for separation as "MISCONDUCT."

The applicant petitioned the Army Discharge Review Board (ADRB) seeking a discharge upgrade and a change in the narrative reason for separation.  The ADRB, after considering his case on 28 October 2002, denied his request.  However, the ADRB found the applicant's DD Form 214 to be administratively incorrect and directed that the separation authority be changed to "AR 635-200 CHAPTER 14-12C," the separation code as "JKQ," and the RE code as "3."  A new DD Form 214 was subsequently issued.

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, and 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 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-3 applies to persons not qualified for continued Army service, but the disqualification is waivable.  Certain persons who have received NJP 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.

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’s discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the applicant's overall record of military service, a record marred by numerous incidents of indiscipline.

3.  The applicant's DD Form 214 correctly reflects the appropriate RE code for a soldier separated by reason of misconduct.  There is no error or injustice in the applicant's RE code.

4.  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

__mkp___  __jlp___  __mmb___  DENY APPLICATION

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

INDEX

CASE ID	AR2002074152	
SUFFIX		
RECON		
DATE BOARDED	20030114	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	19991029	
DISCHARGE AUTHORITY	AR 635-200 C14	
DISCHARGE REASON	A60.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.0000	
2.		
3.		
4.		
5.		
6.