MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  12 August 1999
	DOCKET NUMBER:  AR1999018328

	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. Loren G. Harrell		Director	
	Ms. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Mr.Raymond V. O'Connor		Chairperson	
	Mr. James M. Alward		Member	
	Mr. Meta Waller		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 his DD Form 214, Certificate of Release or Discharge from Active Duty, to upgrade his reentry eligibility (RE) code from RE-3 to one which would allow reenlistment.  In effect, this constitutes a request for removal or waiver of those disqualification's which preclude reenlistment.

APPLICANT STATES:  In effect, that he was falsely charged and he did not get a chance to redeem himself.  He was also denied promotion and the opportunity to fulfill his service obligation.  He submits a copy of the DD 214 in question and a Department of Veterans Affairs (DVA) record that shows the dates of his honorable periods of service.

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

He enlisted in the Regular Army for 3 years from 20 August 1980 to 19 August 1983.  He then served in the US Army Reserve Control Group from 20 August 1983 until 7 June 1986.  On 8 June 1986, he entered the Ready Reserve and, on 25 March 1990, he entered on a 3-year active duty commitment in the Active Guard-Reserve (AGR) program. He was a specialist (E-4), supply specialist.

The applicant was a substandard soldier.  Between January 1991 and June 1992, he was counseled numerous times for being late for duty, for fraudulent use of a government telephone (106 occasions), for making $1,900 in personal purchases on a Government Diner's Club Card, for failure to pay his debt, for destroying official government documents, and for violating physical security by leaving the Arms Room and the Intrusion Detection System keys unsecured. 

The applicant was absent without leave (AWOL) from 1-3 April 1991 and again on 15 July 1991.  On 18 July 1991, nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice was imposed against him for being AWOL from 1-3 April 1991.  His punishment included forfeiture of pay, and a written Letter of Reprimand.

On 10 August 1991, the applicant tested positive for cocaine.  On 17 October 1991, he was referred for evaluation by the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) due to the positive urine test.  During the evaluation process, he stated that this was his first time using cocaine.  He did not have a continuing cocaine-use problem, and that he did not desire any type of rehabilitation.  He was not enrolled in the ADAPCP; the Clinical Director, ADAPCP, stated in a memorandum to the commander that the applicant was not open to change or to taking responsibility for his problem.

On 7 November 1991, the applicant’s commander notified him that he was being recommended for discharge under the provisions of Chapter 14, Army Regulation (AR) 635-200, for misconduct -- commission of a serious offense, with an UOTHC discharge. The applicant acknowledged notification and was advised by legal counsel of the basis for the contemplated action, its potential effects, and the rights available to him, to include a hearing before an administrative separation board.  He requested a personal appearance before an administrative separation board, but declined to submit a statement in his own behalf.

On 30 March 1991, the commander notified the applicant to appear before a board of officers on 15 May 1992.  The Board convened and found that the applicant was undesirable for retention in the military.  The Board recommended separation under the provisions of Chapter 14, AR 635-200, for acts or patterns of misconduct.

On 1 June 1992, the approving authority waived rehabilitation, approved the recommendations of the Board, and directed the issuance of a UOTHC discharge for misconduct-commission of a serious offense under the provisions of Chapter 14, 
AR 635-200.

On 16 June 1992, the applicant was separated with a UOTHC discharge and reassigned to the USAR Control Group, St. Louis.  He completed a total of 2 years, 2 months, and 19 days of active military service on the enlistment under review.  On 3 November 1992, he was separated from the Individual Ready Reserve (IRR) with an HD.

Evidence of record indicates that on 1 November 1995, the Army Discharge Review Board denied the applicant's request for upgrade of his discharge.

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.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter l4 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.  A discharge under other than honorable conditions is normally considered appropriate, but a general discharge under honorable conditions or an honorable discharge may also be awarded.

DISCUSSION:  Considering all 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's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardize his rights.

3.  The Board noted that the command imposed nonjudicial punishment against the applicant for misconduct and continuously counseled him for numerous incidents of misconduct.  He was afforded a reasonable opportunity to conform to the required standards of discipline and performance.  He was appropriately separated when the command determined that he did not demonstrate the potential for further military service.

4.  An RE-3 code 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.

5.  In view of the circumstances in this case, the assigned reentry eligibility codes were, and still are, appropriate.  Therefore, 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.

NOTE:  The applicant’s DD Form 214, dated 16 June 1992, does not reflect the proper date of enlistment in Block 12a.  The Commander, AR-PERSCOM, is requested to correct the applicant’s DD Form 214 to reflect the following in Block 12a, Date Entered AD This Period:  90 – 03 – 25 vice 91 – 12 – 30.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

RVO____  JMA_____  MW_____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999018238	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990812	
TYPE OF DISCHARGE	(UOTHC)	
DATE OF DISCHARGE	19920616	
DISCHARGE AUTHORITY	AR 635-200, Chapter 14 	
DISCHARGE REASON	Misconduct-Commission of a Serious Offense	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY	Director	
ISSUES         1.	A67.30	
2.		
3.		
4.		
5.		
6.