MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           23 February 2000                   
	DOCKET NUMBER:   AR1999030406

	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. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Ms. Elizabeth Buchanon		Member	
	Mr. Raymond J. Wagner		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 discharge be upgraded to honorable, that his
rank of Sergeant be reinstated and that his reenlistment code be upgraded.

APPLICANT STATES:  That he has been a good, hard working, productive citizen (since his discharge) with no history of alcohol abuse.  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 16 November 1976 and received a DD Form 214 showing his honorable service when he reenlisted on 22 May 1979.

On 28 March 1983, the applicant accepted non-judicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for operating a vehicle while drunk.  His punishment was a reduction to pay grade E-4, forfeiture of $444.00 for 2 months, and 45 days extra duty and restriction (suspended for 6 months).

On 27 June 1983, the applicant accepted NJP under Article 15, UCMJ for operating a vehicle while drunk and driving in violation of the revocation of his post driving privileges.  His punishment was a reduction to pay grade E-1, forfeiture of $286.00 pay for 2 months and 45 days extra duty and restriction (suspended for 6 months).

On 28 June 1983, the commander initiated separation action on the applicant under the provisions of Army Regulation 635-200, Chapter 9 for failure to refrain from excessive use of alcohol and noted his two field grade Article 15s.  There is no evidence of record to show that the applicant was ever referred to the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP).

On 28 June 1983, the applicant acknowledged notification of the action.  He did not desire military legal counsel and made no statement.

On 28 June 1983, the applicant completed a separation physical examination and was found to be qualified for separation.

The appropriate authority approved the recommendation for separation under the provisions of Chapter 9, Army Regulation 635-200 and directed he be given a general discharge.

On 22 July 1983, the applicant was discharged, with a general discharge under honorable conditions, in pay grade E-1, under the provisions of Army Regulation 635-200, Chapter 9.  He had completed 6 years, 8 months and 7 days of creditable active service and had no lost time.  His reenlistment code is 4.  

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 9 provides for the discharge of members based on alcohol or other drug abuse such as the illegal, wrongful or improper use of any controlled substance, alcohol or other drug when the soldier in enrolled in ADAPCP and the commander, in consultation with the rehabilitation team, determines that further rehabilitation efforts are not practical, rendering the soldier a rehabilitative failure.  It also states that offenses of alcohol or other drug abuse which are not exempt may properly be the basis for discharge proceedings under Chapter 14 (misconduct).  Paragraph 14b concerns a pattern of misconduct for which the applicable separation code requires a reenlistment code of 3.  Paragraph 14c concerns commission of a serious offense for which the applicable separation code requires a reenlistment code of 3.

Army Regulation 635-200 also states in pertinent part that an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the soldier’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  A general discharge is a separation from the Army under honorable conditions.  It is issued to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.
The type of discharge and character of service will be determined solely by the military record during the current enlistment from which the soldier is being separated.

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-4 applies to persons not qualified for continued Army service and the disqualification is not waiverable.  RE-3  also applies to persons not qualified for continued Army service but the disqualification is waiverable.

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.  It appears the applicant was discharged under an inappropriate provision of Army Regulation 635-200.  There is no evidence of record to show that the applicant was ever referred to the ADAPCP, a primary requirement prior to separation under Chapter 9.
2.  However, the Board finds no error with the reductions in rank imposed through the applicant’s two Article 15s.  The punishments were appropriate considering the offenses.

3.  Because of the applicant’s record of non-judicial punishment, the Board concludes it would have been appropriate for his command to process him for separation under the provisions of Chapter 14, Army Regulation 635-200 either for pattern of misconduct or commission of a serious offense.  Either provision would have resulted in his receiving a reenlistment code of 3 instead of 4.  The Board also concludes that a separation under this provision would also have warranted a general discharge under honorable conditions.

4.  Unless the applicant submits an application to the Board specifically requesting a change to the authority for separation and to the narrative reason for separation, the Board will take no action to change those items on his DD Form 214.  Neither will it take action to change his reenlistment code.  At this point (being an E-1 over 40 years of age) changing his reenlistment code to 3 would give him no effective relief and the applicant may object to changing the narrative reason for separation to “misconduct.”

5.  The Board has taken cognizance of the applicant’s good post-conduct service, but that factor does not warrant granting the relief requested.

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

__rvo___  ___eb___  __rjw___  DENY APPLICATION

Karl F. Schneider
Director, Army Review Boards Agency

INDEX

CASE ID	AR1999030406	
SUFFIX		
RECON		
DATE BOARDED	20000223	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	19830722	
DISCHARGE AUTHORITY	AR 635-200, Ch 9 	
DISCHARGE REASON	A69.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	100.00	
2.		
3.		
4.		
5.		
6.