MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           2 July 2002
	DOCKET NUMBER:   AR2002073317

	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	
	Ms. Nancy L. Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Karol A. Kennedy		Chairperson	
	Mr. Arthur O. Omartian		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 reentry (RE) code be upgraded to 1.

APPLICANT STATES:  That the Army Discharge Review Board (ADRB) upgraded his discharge to honorable in November 2001 but did not change his RE code.  He has been talking to a recruiter about reenlisting.  He provides three letters of recommendation from the upper management of his company as supporting evidence.

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

He enlisted in the Regular Army on 8 February 1996.  He completed basic training and advanced individual training and was awarded military occupational specialty 11H (Heavy Anti-Armor Weapons Infantryman).  He completed basic airborne training.

On 15 August 1996, the applicant completed a separation physical and was found qualified for separation.  On 19 August 1996, he completed a mental status evaluation and was found to have the mental capacity to understand and participate in proceedings and to be mentally responsible. 

On or about 21 August 1996, the applicant’s commander initiated separation action under the provisions of Army Regulation 635-200, chapter 14, patterns of misconduct and, specifically, paragraph 14-12c(2), commission or a serious offense, abuse of illegal drugs.  The commander cited the applicant’s twice failing the Army Physical Fitness Test, his violating pass privileges by exceeding the  50-mile radius, his failing to be at his appointed place of duty, his being absent without leave (AWOL) for three days (for which he accepted non-judicial punishment under Article 15, Uniform Code of Military Justice), and his testing positive for marijuana on a urinalysis (for which he accepted non-judicial punishment under Article 15, Uniform Code of Military Justice).

On 21 August 1996, the applicant acknowledged the separation action.  He submitted no statements in his own behalf.

The appropriate authority approved the recommendation for separation and directed the applicant receive a general discharge.

On 10 September 1996, the applicant was discharged in pay grade of E-1 under the provisions of Army Regulation 635-200, paragraph 14-12c(2) for misconduct. He had completed 7 months of creditable active service and had 3 days of lost time.  He was given a separation code (SPD) of JKK (separated under the provisions of Army Regulation 635-200, paragraph 14-12c(2)).  He was given an RE code of 4.  

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 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.

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 code 4 applies to persons not qualified for continued Army service and the disqualification is nonwaivable.  RE code 3 applies to persons not qualified for continued Army service but the disqualification is waivable.  

At the time, Army Regulation 635-5-1, Table 2, SPD/RE Cross Reference Table directed that when the SPD code was JKK then RE code 4 would be given.  In March 2001, the Table was changed to direct that when the SPD code was JKK then RE code 3 would be given.

Army Regulation 635-5, paragraph 2-6c(3) states that the U. S. Total Army Personnel Command (PERSCOM) may make a correction to the RE code after  a soldier has separated.  Requests should be submitted to the Commander, PERSCOM, ATTN:  TAPC-EPR-P, 200 Stovall Street, Alexandria, VA        22331-0457.

Army Regulation 15-185, the regulation under which this Board operates, states that the Board will not consider any application if it determines that an applicant has not exhausted all available administrative remedies.  

On 31 January 2001, in a records review, the ADRB denied the applicant’s request for an upgraded discharge.  On 5 November 2001, in a personal hearing, the ADRB upgraded his discharge to fully honorable.  

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.  RE codes are given based upon the reason for separation; the characterization of service is irrevelant.  There is no evidence of Government error in this case; the applicant was given the correct RE code of 4 at the time based upon his reason for separation.  It would not appropriate to show that he was fully qualified for reenlistment by giving him an RE code of 1.  

3.  Current regulatory guidance is that the applicant would have been given an RE code of 3 rather than 4 based upon the reason for his separation.  The applicant may apply to PERSCOM for a correction to his RE code based upon current standards.  He may also request a waiver to enlist at the same time.  If for some reason PERSCOM fails to grant the relief requested, he may reapply to the Board, with the final action taken by PERSCOM as supporting evidence, for reconsideration.

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

__KAK__  __AOA__  __RJW__  DENY APPLICATION

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

INDEX

CASE ID	AR2002073317	
SUFFIX		
RECON		
DATE BOARDED	2002/07/02	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	100.03	
2.		
3.		
4.		
5.		
6.