MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           15 March 2000                            
	DOCKET NUMBER:   AR1999031649

	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. Judy Blanchard-Miller		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Ms. Margaret K. Patterson		Member	
	Mr. Van B. Cunningham		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 general discharge be upgraded to an honorable discharge; that he be immediately reinstated into active with the removal of the chapter 14 separation and references thereto; that he be afforded a proper rehabilitative event as of the immediate date of discharge without any loss of rank, time in grade or time in service and that his reenlistment code be upgraded to reflect immediate reenlistment eligibility.

APPLICANT STATES:  In effect, that his general discharge was improper because his former chain of command’s failure to follow the procedures prescribed in Army Regulation 635-200, which denied him rehabilitation; that the nonjudicial punishments that he received were too harsh; that he submitted a complaint of racial discrimination; that instead of investigating his complaints his First Sergeant sent him to Mental Hygiene, who recommended him for discharge; and that his command deliberately took advantage of a naïve troubled teenager.  The applicant submits a five-page brief in support of his application. 

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

On 8 October 1991, he enlisted in the Regular Army for 2 years and 16 weeks.  He completed the required training and was awarded military occupational specialty 11C10 (Indirect Fire Infantryman).  The highest grade he achieved was pay grade E-2.

Between March and June 1992, the applicant was counseled on 15 different occasions for missing formation, disobeying lawful orders, insubordination, dereliction of duty and poor personal hygiene.   

On 9 July 1992, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for failure to go at the time prescribed his appointed place of duty.  His imposed punishment was a reduction to pay grade E-1, a forfeiture of $183.00 pay, 12 days restriction and extra duty.

On 14 August 1992, the applicant accepted an NJP under Article 15, UCMJ, for two occasions of using provoking and reproachful gestures.  His imposed punishment was 14 days restriction and extra duty. 

A mental status evaluation found the applicant qualified for separation.  There was no evidence of psychosis or neurosis or other disorders qualifying him for disposition through medical channels.  He was considered mentally competent to participate in board proceedings. 

On 17 November 1992, the commander notified the applicant that he was being recommended for discharge under the provisions of Army Regulation 635-200, chapter 14, for misconduct-pattern of misconduct.  The commander’s recommendation was based on the applicant’s two NJP’s, his numerous counseling statements, his poor duty performance and action, which indicated that he could not be rehabilitated for productive military service.  On the same day, the applicant acknowledged notification, consulted with legal counsel of the basis for the contemplated separation action and the rights available to him.  He was afforded the opportunity to submit statements in his behalf.  The applicant statement is missing from his file.

On 30 November 1992, the appropriate authority waived rehabilitation, approved the recommendation and directed the issuance of a general discharge under honorable conditions.  On 22 January 1993, the applicant was discharged in pay grade E-1 under the provisions of Army Regulations 635-200, chapter 14-12b, for (misconduct-pattern of misconduct), with a general discharge.  He had completed 1 year, 3 months and 15 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.  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 leaves.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

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).  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.

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 nonjudicial punishment 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.

On 30 December 1996, the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge.

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 alleges that the imposed NJP’s that he received was too harsh. The NJP’s that he received were in compliance with applicable laws, regulations and policies.  The punishment imposed was not disproportionate to the offense, and there is no evidence of his rights being violated.

3.  The applicant alleges that his command ignored his complaints about racial discrimination.  There is also no evidence in the available records to demonstrate that the applicant was the victim of racial prejudice. 

4.  The applicant's contentions that he was a naïve and trouble teenager, who was taken advantage of by his command.  There is no evidence to support his allegations.  The Board notes that the applicant met entrance qualification standards to include age.  The Board further found no evidence that the applicant was any less mature, that his aptitude scores were any lower or that his education was any less than other soldiers of the same age who successfully completed military service.  There is also no evidence in the applicant’s record that indicates that his command took advantage of him in any way.

5.  The applicant alleges that his general discharge was improper because he was denied rehabilitation.  The evidence of record shows that his command attempted to assist the applicant in performing and conducting himself to Army standards by providing counseling and even by imposition of NJP’s.  There is no evidence to support the applicant’s allegations that these attempts were unfair; he failed to respond appropriately to these efforts.  The discharge process was conducted in accordance with applicable law and regulations applicable at the time.  This Board is convinced that the reason for his discharge and the characterization of service were both proper and equitable. 

6.  The applicant was separated and assigned a reentry code in accordance with regulations then in effect, with no indication of procedural errors.

7.  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.  Therefore, the assigned RE code was and still is appropriate. 

8.  Since there is no basis to grant the portion of his request pertaining to upgrading his discharge, there is likewise no basis for granting the remaining 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

__rvo___  __mkp___  __vbc___  DENY APPLICATION

Karl F. Schneider
Director, Army Review Boards Agency

INDEX

CASE ID	AR1999031649	
SUFFIX		
RECON		
DATE BOARDED	20000315	
TYPE OF DISCHARGE	(GD)	
DATE OF DISCHARGE	19930122	
DISCHARGE AUTHORITY	AR635-200, chapter14 .  .  .  .  .  	
DISCHARGE REASON	A60.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	144.6000	
2.		
3.		
4.		
5.		
6.