MEMORANDUM OF CONSIDERATION


	IN THE CASE OF

	BOARD DATE:            10 June 1998                  
	DOCKET NUMBER:    AC95-10309A

	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.  The following members, a quorum, were present:




	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	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 the separation authority, separation code, reentry eligibility (RE) code, and narrative reason for separation on his
DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed.

APPLICANT STATES:  In effect, that he was not afforded due process during the separation process; that he was harassed because of his religion; that his command was arbitrary and capricious in separating him; that he wishes to reenter the Texas National Guard; that under current standards he would not be issued this discharge; that his conduct and efficiency was mostly good; that his record of promotions indicates he was a good soldier; that he has been a good citizen since his discharge; that his record of nonjudicial punishment (NJP) indicate only minor isolated incidents; that racial discrimination impaired his ability to serve; that his command abused it’s authority when it decided to give him a bad discharge; that he applied for a compassionate discharge but was unfairly denied; and that he was enlisted illegally.

COUNSEL CONTENDS:  The applicant’s DD Form 149 indicates he is represented by counsel from the American Civil Liberties Union; however, counsel has not submitted a brief or other documents in support of the case.

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

On 4 January 1994 the applicant entered the Regular Army for a period of 
3 years.  At the time of his enlistment in the Regular Army, he had completed 
1 year, 6 months, and 25 days of honorable Army National Guard service; attained the rank of specialist E-4; and held military occupational specialty (MOS) 31D (Mobile Subscriber Equipment Transmission Systems Operator).

The applicant’s record contains no documented acts of valor, achievement, or service warranting special recognition.  However, it does include a history of disciplinary infractions including acceptance of nonjudicial punishment (NJP), under the provisions of Article 15 of the UCMJ.

On 28 April 1994 the applicant accepted an NJP for willfully disobeying a lawful order on 6 April 1994; for disobeying a lawful order on 29 March 1994; and for  being disrespectful in language to an NCO on 29 March 1994.  The resultant punishment included a reduction to private first class/E-3; 14 days extra duty; and 7 days restriction.

The applicant’s record also documents that the applicant was formally counseled on four separate occasions for the following disciplinary infractions:  missing formation; failure to follow instructions; writing bad checks; and failure to meet Army Physical Fitness Test (APFT) standards.  

On 17 August 1994 the applicant’s unit commander notified the applicant of the intent to initiate action for his separation, under the provisions of chapter 13, 
AR 635-200 for unsatisfactory performance.  The unit commander cited the reason for his action as the applicant’s unsatisfactory performance, as evidenced by the applicant’s failure to pass the APFT; his writing bad checks; his disrespect toward an NCO; and his failure to repair.  The commander included his recommendation that the applicant receive an honorable discharge.

On 17 August 1994 the applicant consulted counsel, and after being advised of the basis for the contemplated separation action, acknowledged receipt of the action and completed his election of rights.  On 26 August 1994 the appropriate authority approved the separation action and directed the applicant be released from active duty and transferred to the Individual Ready Reserve (IRR) to complete his service obligation.  Additionally, it was directed that the applicant receive an honorable characterization of service, and that the separation program designator (SPD) code would be in accordance with Army Regulation 635-5-1 (SPD Codes).  Accordingly, on 12 September 1994 the applicant was separated after completing 8 months and 9 days of the period of service under review, and 1 year, 6 months and 25 days of Army National Guard Service.

At the time of separation the applicant was assigned an RE code of 3.  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.  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. 

AR 635-5-1 (Separation Program Designator (SPD) Codes), with an effective date of 1 October 1993, is the current regulation and provides SPD codes under current standards.  This regulation was also in effect at the time of the applicant’s separation.  It provides that SPD code LHJ be used when the authority for separation is AR 635-200, chapter 13, and the associated narrative reason for separation is unsatisfactory performance.

On 30 April 1998 the Army Discharge Review Board denied the applicant's request for an upgrade to his discharge and found that the discharge process was proper in all respects.

Army Regulation 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 productive soldier.

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.  The Board found no corroborating evidence to support the applicant’s contentions that he was enlisted illegally; that he would not receive this type of discharge under current standards; that he was denied due process of law during the separation process; or that the command’s action was arbitrary and capricious.  The Board noted that the applicant voluntarily enlisted in the Regular Army; that during the separation process he had consulted counsel, was advised of the basis for the separation action, and completed his election of rights; and that he ultimately received an honorable characterization of service.  The  Board concluded the discharge proceedings were conducted in accordance with law and regulation in effect at the time, and that these policies and procedures are still applicable under current standards.  

2.  The Board examined the applicant’s record of service during the period of enlistment under review.  There was full consideration of all faithful and honorable service as well as infractions of discipline, the extent thereof, and the seriousness of the offenses.  The Board concluded that the discrediting entries in the applicant’s record were not mitigated by his conduct and efficiency ratings; his record of promotions; or subsequent service of sufficient merit to warrant a change to reason for the discharge being reviewed.  The Board concluded the that the reason for discharge was both proper and equitable and was commensurate with the provisions and authority under which the applicant was discharged.

3.  The contentions of the applicant that he suffered from religious and racial discrimination, and that he was unfairly denied a compassionate reassignment have been noted by the Board.  However, they are not supported by either evidence submitted with the application or the evidence of record.

4.  The Board acknowledged the applicant’s desire to reenlist in the Texas National Guard; however, in view of the circumstances in this case, the assigned reentry eligibility code was and still is appropriate.  Although the Board is denying a change in your reentry eligibility code, this does not mean that the opportunity to reenlist is completely denied.  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.

5.  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.

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

________  ________  ________  DENY APPLICATION




						Loren G. Harrell
						Director