MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           17 June 2003                   
	DOCKET NUMBER:   AR2002078319

	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. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Hubert O. Fry, Jr.		Member	
	Ms. Marla J. N. Troup		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 her separation code be changed so that she may be eligible to reenter the military.  In essence, she is also requesting that her Reentry Eligibility (RE) Code also be changed.

APPLICANT STATES:  That it has been 10 years since she was separated, she has matured and is more dependable and confident.  She wants a second chance to serve.  

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

That on 18 October 1990, she enlisted in the Regular Army (RA) for 5 years and training in military occupational specialty (MOS) 75B (Personnel Administrative Specialist).  She completed the required training and was awarded MOS 75B.  On 14 March 1991, she was assigned to Fort Clayton, Panama, with duties in MOS 75B.  

On 22 January 1991, the applicant was issued a temporary profile due to a tear of the third metatarsal cuneiforms ligament in her left foot.  The profile stated, "no jumping, marching or running."  The profile expired on 5 February 1991.  On 6 February 1991, she was issued a temporary profile for the same medical condition that stated "may substitute walk for run portion of PT test."   This profile expired on 6 March 1991 and there is no evidence that she was issued a profile after this date.

Between October and November 1991, DA Forms 4856 (General Counseling Form) show that the applicant was counseled on numerous occasions for various reasons, to include:  having an open beer bottle in a military vehicle; shouting and using profanity; failing to use the appropriate military bearing; showing a lack of responsibility; failing to perform her duties to Army standards; being disrespectful towards a noncommissioned officer; and failing to report to remedial Army physical fitness training.  

On 23 October 1991, the applicant informed her chain of command that she was frustrated and that she desired to be separated from the military.  The applicant was informed that she could not be separated unless she "messed up," or was unable to function/perform her duties on a daily basis.

A DA Form 4856, dated 30 October 1991, states that the applicant, on 28 and 29 October 1991, "openly and proudly contested that [she was] intentionally going to fail the Army Physical Fitness test (APFT) conducted on 30 October 1991."  It states that she did, in fact, fail the APFT and that the failure was presumed to be intentional given her statements of 28-29 October 1991 and the fact that she had demonstrated no prior difficulty in passing the test.

On 20 November 1991, the applicant's commander submitted a DA Form 4187 (Personnel Action) recommending the applicant be separated under the provisions of chapter 13, Army Regulation 635-200, due to the failure of two consecutive APFT's on 30 October and 15 November 1991.  The applicant signed the recommendation and requested release on 16 December 1991.

On 3 December 1991, the separation authority approved the separation recommendation and directed the issuance of a HD.

The applicant's records do not contain all the facts and circumstances surrounding the discharge process; however, her record contains a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty) that was prepared at the time of separation and authenticated by the applicant.  Her DD Form 214 shows that, on 24 December 1991, she was separated under the provisions of Army Regulation 635-200, for unsatisfactory performance with an HD.  She had completed 1 year, 2 months and 7 days of active military service.  She was assigned a separation code of "LHJ" and an RE code of RE-3. The DD Form 214 shows no lost time.

Pertinent Army regulations (AR) 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.  AR 601-210 covers eligibility criteria, policies, and procedures for enlistment and processing into the 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 AR 635-200.  A separation code of "LHJ" applies to RA soldiers separated for unsatisfactory performance under chapter 13, AR 635-200.  

AR 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance, and provides, 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 a satisfactory soldier.  Repeated failure of the APFT is a basis for a discharge for unsatisfactory performance.

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.  An available DD Form 214 shows the applicant was discharged under the provisions of chapter 13, AR 635-200, due to unsatisfactory performance and assigned a Separation Code of "LHJ" and an RE-code of RE-3.  These codes apply to persons not qualified for continued Army service, but the disqualification is waivable as determined by enlistment officials and the needs of the Army.

3.  In view of the circumstances in this case, both the assigned RE code and the separation code were, and still are, appropriate as shown on the applicant's DD Form 214.  The applicant has submitted no evidence that these codes are in error or should be changed.  

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

__fne___  __hof___  __mjnt__  DENY APPLICATION

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

INDEX

CASE ID	AR2002078319	
SUFFIX		
RECON		
DATE BOARDED	20030617	
TYPE OF DISCHARGE	(HD)	
DATE OF DISCHARGE	19911224	
DISCHARGE AUTHORITY	AR 635-200, Chap 13 	
DISCHARGE REASON	A49.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	144.4900	
2.		
3.		
4.		
5.		
6.