MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
                                   
        


         BOARD DATE: 1 November 2001
         DOCKET NUMBER: AR2001060745

         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
Ms. Antoinette E. Farley		Analyst

The following members, a quorum, were present:

Mr. Walter T. Morrison		Chairperson
Mr. Arthur A. Omartian		Member
Mr. Curtis L. Greenway		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 military records to show the reentry eligibility (RE) code 1, which would allow reenlistment. In effect, this constitutes a request for removal or waiver of those disqualifications, which preclude reenlistment.

APPLICANT STATES: In essence, that he does not know why he was discharged from the service. He contends that he was a victim of discrimination by his unit, because of his Vietnamese nationality. He further relies on his military record in support of his case.

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

He enlisted in the Regular Army for 4 years on 14 April 1995. He completed his basic combat training at Fort Leonard Wood, Missouri and began his Advanced Individual Training (AIT) in military occupational specialty (MOS) 91B10 (Medical Specialist) at Fort Sam Houston, Texas. On 19 November 1996, he was assigned to duty in his MOS at Tripler Army Medical Center, Hawaii.

On 28 May 1997, the applicant was issued a DA Form 4856 (General Counseling Forms), for poor performance, misconduct and for being absent from his place of duty on 15 February 1997 and 15 May 1997. On each of the following dates 14, 17, 23, 25 and 30 July 1997, he received a DA Form 4856 for one or more of the following reasons: for failing to follow instructions, for failing to inform his commissioned officer of his sick call authorization until 15 minutes prior to starting duty, for performing marginal and/or substandard work, for being disrespectful to a noncommissioned officer (NCO) and for failing to obey lawful orders and willful disobedience of an order from an NCO.

The applicant was counseled two more times between 18 August and 29 October 1997, for being absent from his place of duty, for failing to report to work as scheduled, for failing to follow instructions for refusing to sign his counseling statements.

On 24 November 1997, he received the last of two counseling statements for being absent from his place of duty, for failing to follow specific orders to report to his company unit for an assignment detail, for attending training without authorization and for continuing to show a trend of behavior problems, disrespect and disobeying lawful orders. Each general counseling statement included procedures that clearly outlined the ultimate consequence for his behavior as separation with either a chapter 5, 9, 13 or 14, under the Army Regulation 635-200.

On 27 January 1998, the applicant’s unit commander initiated action to separate him under the provisions of Army Regulation 635-200, chapter 14-12b and 12c, for patterns of misconduct and serious misconduct. The commander cited the applicant’s pattern of misconduct for numerous periods of being absent from his place of duty. He further points out his pattern of serious misconduct is shown by his continued persistence of showing disrespect towards a commissioned officer, showing disrespect towards noncommissioned officers and failing to obey lawful orders. The applicant was advised of his rights, consulted with legal counsel, and was informed of the impact of a less than fully honorable discharge. He elected to make a statement in his own behalf.

On 11 February 1998, the applicant underwent a mental status evaluation and medical examination, which cleared him for separation.

On 18 February 1998, the applicant submitted a letter in his own behalf in which he requested that corrections be made to all of his previous counseling statements. He stated that they contained false accusations from the Medical Company B, specifically everything that was entered by the noncommissioned officers in his chain of command. He further stated that “no matter what Medical Company B does, he has no further requests.” Finally, he contends that he could not tolerate his chain of command any more, because they were racist and discriminated against him. Therefore, he had no choice but to cancel his contract.

On 20 February 1998, his intermediate commander concurred with the recommendation for a general discharge (GD) under honorable conditions and also recommend that he not be transferred to the Individual Ready Reserve (IRR). On 5 March 1998, the separation authority waived rehabilitation efforts for the applicant, determined he would not be transferred to the IRR and approved the recommendation for discharge for misconduct-commission of a serious offense with a GD), under the provisions of chapter 14-12c.

On 1 June 1998, the applicant was separated with a GD, under the provisions of chapter 14-12c, AR 635-200, for misconduct-commission of a serious offense. He had 3 years, 1 month and 18 days of creditable service and no lost time. The highest grade he achieved was pay grade E-3. He was also assigned a RE Code of RE-3.

The Manual for Courts-Martial, Table of Maximum Punishments, as then in effect and the edition currently in effect, provide that a punitive discharge is authorized for willful disobedience.

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 included minor disciplinary infarctions, a pattern of misconduct, commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or absences without leave. Paragraph 14-12c covers discharges caused by commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Uniform Code of Military Justice, Army Regulation 635-200. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. Army policy states that a discharge under other than honorable conditions is normally considered appropriate, but a GD under honorable conditions or an honorable discharge may be granted in certain cases.

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. 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.

The applicant petitioned the Army Discharge Review Board (ADRB) seeking an upgrade of his discharge. The applicant personally appeared before that board, and his upgrade was denied.

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 unjust. The applicant, in this case, has failed to submit evidence that would satisfy this requirement.

2. Evidence of record indicates the applicant did commit a serious offense while on active duty, which was supported by his numerous counselings from
15 February 1997 - 24 November 1997.

3. The applicant has provided no evidence that the RE code of RE-3 is improper. Since no change in the reason for discharge is appropriate, there is no basis for a change in the RE code. However, 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. Further, the applicant has not provided any substantiated evidence that shows he was discriminated against because of his nationality by anyone within his unit’s chain of command or that his discharge was based on anything other than his own misconduct as clearly documented by his signature on eight of his counseling statements and throughout the discharge procedures.

5. There appears to be no basis for removal or waiver of that disqualification which established the basis for the reentry eligibility code. In view of the circumstances in this case, the assigned reentry eligibility code was and still is appropriate.

6. In view of the foregoing, there is no basis to grant 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

__wtm___ ___aao__ __clg ___ DENY APPLICATION

Carl W. S. Chun
Director, Army Boards for Correction
of military Records

---

INDEX

CASE ID	AR2001060745
SUFFIX
RECON
DATE BOARDED	20011101
TYPE OF DISCHARGE	GD
DATE OF DISCHARGE	19980601
DISCHARGE AUTHORITY	AR 635-200 CH14-12c
DISCHARGE REASON	A144.60
BOARD DECISION	DENY
REVIEW AUTHORITY	DIRECTOR
ISSUES 1.	A62.00
2.	A
3.	A
4.
5.
6.