MEMORANDUM OF CONSIDERATION


IN THE CASE OF:
        


         BOARD DATE: 13 September 2001
         DOCKET NUMBER: AR2001053970

         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. John E. Denning		Member
Ms. Terry L. Placek		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 Item 26 (Separation Code) and Item
27 (Reentry Eligibility (RE) Code) on his DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed to more favorable codes so that he will be eligible to reenter the military.

APPLICANT STATES: In effect, his military status was of good standing until he was treated unfairly in 1980. He had been assigned to Germany about five months when the Red Cross notified him that his son was in the hospital near death as a result of bronchial pneumonia and his wife wanted him to come home. His wife had remained in the United States because she had recently given birth to their first child. A major field exercise was underway and his commander denied him leave because all noncommissioned officers were needed. After he talked to the chaplain, his commander granted him 10 days of leave because that was all that he had accrued. His son's condition worsened after he got home. The Red Cross worked with him in conjunction with the Fort Lee, Virginia, Post Command Sergeant Major to extend his leave for 20 days. However, before the 20 days were up, he was arrested, placed in military confinement and returned to Germany. When he arrived in Germany, he was placed under company restriction and the acting commander imposed a company grade nonjudicial punishment (NJP) against him. His punishment included reduction from pay grade E-5 to pay grade E-3, 45 days extra duty and restriction and forfeiture of $850 pay for 1 month. His father contacted his congressperson and explained the situation. His congressperson contacted his battalion commander. When his battalion commander returned from the field exercise, he dropped all of the charges and reinstated him to pay grade E-5. After this incident, he was passed over twice because he did not have enough points to be promoted to pay grade E-6. When he was assigned to Fort Stewart, Georgia, his reenlistment date was approaching. When he tried to reenlist, he was told that he needed a waiver to remove the NJP and the Code of RE-3 from his records. His request for a waiver was denied. Therefore, he was denied an opportunity to become a career soldier. He submits copies of his DD Forms 214, and a copy of NA Form 13044 (Reply Concerning Military Records) in support of his request.

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

That with prior honorable service in the Regular Army (RA) from 28 December 1976-10 July 1979, he reenlisted in the RA for a period of 6 years on 11 July 1979, while assigned to Germany. He reenlisted as a specialist, pay grade E-4, for his previous military occupational specialty (MOS) 11B (Infantryman) and the CONUS Station of Choice Reenlistment Option (Fort Knox, Kentucky). On 26 November 1979, he was promoted to sergeant, pay grade E-5. This was the highest pay grade that he achieved.


On 14 January 1980, he was assigned to Fort Knox. There is no record of indisciplines during this period of service. On 17 December 1981, he was reassigned to Germany.

On 28 May 1982, nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) was imposed against the applicant for being absent without leave (AWOL) from his unit from 23 March-18 April 1982. His punishment included reduction from Sergeant, pay grade E-5 to Specialist, pay grade E-4, 45 days restriction and extra duty. Additionally, the applicant authenticated the DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) to indicate that he had been advised of all of his rights in conjunction with the Article 15 proceedings; that he had consulted with legal counsel and that he did not waive his right to counsel. However, he did waive his right to a court-martial. He also annotated Item 4 (Matters in Defense and/or Extenuation Will Be Presented in Person). The extenuating circumstances are not a matter of record.

A DA Form 2627, dated 28 August 1982, shows that the punishment imposed against the applicant on 28 May 1982 was set aside and all rights, privileges, and property affected was restored by order of the officer who imposed the punishment. His rank was restored to sergeant, pay grade E-5 with a date of rank of 26 November 1979. On 18 November 1984, he was assigned to Fort Stewart, Georgia.

The available record does not contain any evidence that indicates the applicant requested a waiver to reenlist due to having a NJP in his record and that he was denied.

On 10 July 1985, the applicant was honorably discharged under the provisions of chapter 4, Army Regulation 635-200 for expiration term of service. He had completed 6 years on the term of enlistment under review. He had also completed 2 years, 6 months and 13 days of creditable active service on a prior enlistment. He was assigned a Separation Code of "LBK" and a Reenlistment Code of "RE-3."

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 4 of that regulation provides, in pertinent part, for the discharge or release from active duty upon termination of enlistment, and other periods of active duty or active duty for training. A soldier separated upon expiration of enlistment or fulfillment of service obligation will be awarded a character of service of honorable, unless the soldier is in entry level status and service is uncharacterized.

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 enlisting and processing into the RA and the eligibility for prior service applicant’s for enlistment. That chapter includes a list of Armed Forces RE codes and RA RE codes. 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.

A separation code of "LBK" applies to RA soldiers ineligible for, barred from, or otherwise denied reenlistment who are separated on completion of enlistment.

Army Regulation 27-10, Military Justice, prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts-Martial (MCM), United States, 1984, and the Rules for Courts-Martial (RCM) contained in the MCM. It also provides for the administration of NJP and states, in pertinent part, that NJPs may be set aside in whole or in part. An NJP is "wholly set aside" when the commander who imposed the punishment, a successor-in-command, or a superior authority sets aside all punishment imposed upon an individual under Article 15, thereby restoring all rights, privileges, or property affected. A partial setting aside would only impact a specific portion of the punishment imposed while allowing other punishments to remain in place.

Evidence of record indicates the applicant applied to the Army Discharge Review Board in December 2000, which was past that board's 15-year statute of limitation.

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. The applicant was assigned a Separation Code of "LBK" and an RE Code of RE-3 at the expiration of his term of service because he was ineligible for reenlistment due to the NJP that had been imposed against him. The punishment (that portion pertaining to reduction in grade) was set aside. He had already served the 45 days restriction and extra duty. Therefore, his punishment was set aside. The NJP was not removed; it remained a part of his record.

3. A Code of RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable as determined by enlistment officials and the needs of the Army.
4. The documents that the applicant provided, to include his prior active military service, do not provide a basis for a change in his separation (reason for discharge) code or his RE code.

5. There is no evidence in the record to show that his congressperson contacted anyone in his chain of command or that the applicant ever requested, or was denied, a waiver to reenlist.

6. In view of the circumstances in this case, both the assigned RE code and the separation code were, and still are, appropriate. The applicant has submitted no evidence that these codes are in error or should be changed.

7. 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 __ __JED __ __TLP___ DENY APPLICATION

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















INDEX

CASE ID	AR2001053970
SUFFIX
RECON
DATE BOARDED	20010913
TYPE OF DISCHARGE	(HD)
DATE OF DISCHARGE	19850710
DISCHARGE AUTHORITY	AR635-200, Chapter 4
DISCHARGE REASON
BOARD DECISION	(NC)
REVIEW AUTHORITY
ISSUES 1.	112.1000
2.
3.
4.
5.
6.