MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           16 March 2000                   
	DOCKET NUMBER:   AR1999029489

	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.

	Mrs. Joyce A. Hughes		Analyst	

  The following members, a quorum, were present:

	Ms. Jennifer L. Prater		Chairperson	
	Mr. Orville W. Troesch, Jr.		Member	
	Mr. Christopher J. Prosser		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 eligibility (RE) code which would allow reenlistment.  In effect, this constitutes a request for removal or waiver of those disqualifications which preclude reenlistment.

APPLICANT STATES:  In effect, his last request was denied.  He further states that he failed to complete his oath to the U.S. Army and that he experienced personal problems, so therefore he should not be discriminated against.  He also states that he deserves a refund of the monetary deductions. 

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

He was born on 30 January 1960.  He completed 11 years of formal education.
On 30 July 1970, he enlisted in the Regular Army for 3 years.

On 21 August 1979, the applicant accepted nonjudicial punishment (NJP), under Article 15, Uniform Code of Military Justice (UCMJ), for unlawfully striking a
person in the face with his fist.  His imposed punishment was a forfeiture of $70.00 pay for one month.

On 26 February 1980, the applicant accepted NJP for failure to repair.  His imposed punishment was a forfeiture of $104.00 pay for one month (suspended for 30 days).

On 18 March 1980, the applicant accepted NJP for disobeying a lawful order.
His imposed punishment was a forfeiture of $100.00 pay, a reduction to pay grade E-1 (suspended for 60 days), 10 days restriction and 10 days extra duty.

Between March and April 1980, the applicant was counseled on sixteen different occasions for his attitude, motivation, misconduct, rehabilitative recycle and mental hygiene.

On 15 April 1980, the applicant accepted NJP for unlawfully poking a service member in the face with his finger.  His imposed punishment was a forfeiture of $104.00 pay, a reduction to pay grade E-1, 14 days restriction and 14 days extra duty (suspended for 60 days).

On 7 July 1980, the applicant accepted NJP for failing to report to his appointed place of duty.  His imposed punishment was a forfeiture of $104.00 pay, 14 days restriction and 14 extra duty. 

On 24 April 1980, the commander notified the applicant that he was being recommended for discharge under the provisions of Army Regulation 635-200, chapter 13, for unsuitability (apathy and lack of attitude and motivation).  The commander’s recommendation was based on the applicant’s frequent acts of a discreditable nature.  The applicant was advised by legal counsel of the basis for the contemplated separation action and the rights available to him.  The applicant acknowledged notification, he waived consideration, personal appearance and representation by counsel before a board of officers.  He was afforded the opportunity to submit statements in his own behalf, but declined to do so.

On 29 April 1980, the applicant underwent a mental status evaluation and medical examination which found him fit for retention.

On 12 August 1980, the appropriate authority approved the recommendation and directed the issuance of a General Discharge Certificate.  On 20 August 1980, the applicant was discharged under the provisions Army Regulation 635-200, chapter 13, for unsuitability with a discharge GD.  He completed 1 year, 
and 21 days of creditable active service.  He was given a reentry code of RE-3.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel for unfitness or unsuitability.  The regulation provided, in pertinent part, that commanders will separate a member under this chapter.  When in the commander’s judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become satisfactory soldier.  When separation for unfitness was warranted a discharge UOTHC was normally considered appropriate.

On 20 December 1984, the Army Discharge Review Board (ADRB) denied the applicant’s request for an upgrade.

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 person not qualified for continued Army service, but the disqualification is waivable.  Certain persons who have lost time, local bars to reenlistment and those discharge under the provisions of chapter 9, 10. 11. 13 and 14 of Army Regulation 635-200 are assigned and RE-3.

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 of Army Regulation 601-210 (RA and Army Reserve Enlistment Program).  Therefore, since enlistment criteria does change, and since you have the right to apply for a waiver, it is suggested that you periodically visit your local recruiting station to determine if you should apply for a waiver.

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 the aforementioned requirement.

2.  The applicant was discharged and assigned a reentry code in accordance with regulation then in effect.

3.  There is no basis for removal of the RE code from the applicant’s record.  The disqualification upon which the code was based, however, can be waived for reenlistment purposes.

4.  In view of the circumstances in this case, the assigned reentry eligibility code was and still is appropriate.

5.  The applicant implies that he deserves a refund of $650.00.  This Board is unsure of what the applicant really wants.  However, his military record shows that he received five NJP’s and as part of the punishment, forfeitures was taken from his pay, which are not refundable.

6.  Therefore in view of the foregoing, there is no basis for granting the applicant’s requests.

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

__jlp___  __owt___  __cjp___  DENY APPLICATION

Karl F. Schneider
Director, Army Review Boards Agency

INDEX

CASE ID	AR1999029489	
SUFFIX		
RECON		
DATE BOARDED	20000316	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	19800820	
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	112.1000	
2.	100.0300	
3.		
4.		
5.		
6.