MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 6 November 2001
         DOCKET NUMBER: AR2001061595

         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
Mr. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Ms. Deborah S. Jacobs		Chairperson
Mr. Elzey J. Arledge, Jr.		Member
Mr. Donald P. Hupman, Jr.		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)

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APPLICANT REQUESTS: In effect, that his reentry (RE) code be changed.

APPLICANT STATES: In effect, that he was given a bad RE-3 code for something that he was told he could do by his drill sergeant. He had already completed advanced individual training (AIT) and had received his graduation packet, port call, and was scheduled to depart Fort Leonard Wood, Missouri, the day following the events that led to his discharge. He and his platoon had been advised by their drill sergeant that once they had received their graduation packets they could purchase cigarettes and smokeless tobacco which he did the day prior to his scheduled departure. A search of his wall locker was conducted by his first sergeant (1SG), who informed him that he would not proceed on his assignment and that he would receive nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) based on his possessing tobacco products. He initially accepted a company grade NJP for which his punishment was 5 days of extra duty. Three days after he began this punishment, he was informed that his NJP would be changed to field grade. He was subsequently advised that he had two choices, first to redo basic training and AIT or second to accept an Entry Level Separation (ELS). Since he had already completed AIT and thought it was unfair for him to have to repeat the course, he elected to accept an ELS. He was advised that he would be allowed to reenter the Army after six months and that a waiver may be required for him to do this. He claims that in addition to receiving the field grade NJP, he was also denied the return of his class ring that had cost $400.

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

On 26 May 2000, the applicant enlisted in the Regular Army for 3 years and was assigned to Fort Leonard Wood, Missouri, to attend basic training and AIT.

While in training, the applicant was formally counseled on 17 separate occasions, between 12 June and 2 November 2000, for a myriad of performance and conduct related infractions. His disciplinary history also includes his acceptance of NJP on two separation occasions: the first on 27 September 2000, for larceny, wrongful appropriation; and the second on 1 November 2000, for wrongful possession and use of tobacco products.

On 6 November 2000, the applicant was informed by his unit commander that separation action under the provisions of chapter 11, Army Regulation 635-200 was being initiated against him. The commander cited the applicant’s refusal to adapt to the military, his lack of self-discipline, and his disciplinary history as the basis for taking the action. The applicant acknowledged notification of the separation action and confirmed his understanding that he would receive an entry level separation. He completed an election of rights by waiving his right to counsel and elected not to submit a rebuttal statement in his own behalf.

On 7 November 2000, the appropriate authority approved the separation action and directed that the applicant be discharged and issued an uncharacterized ELS. On 13 November 2000, the applicant was discharged accordingly after completing just 5 months and 10 days of active military service.

The separation document (DD Form 214), issued to and authenticated by the applicant with his signature on the date of his discharge, confirms that the authority for his separation was chapter 11, Army Regulation 635-200 and the narrative reason for his separation was entry level performance and conduct. It also shows that the applicant was assigned a Separation Program Designator (SPD) code of JGA and a reentry code of RE-3.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 11 provides for the separation of personnel due to unsatisfactory performance, conduct, or both, while in an entry level status. It applies to individuals who had demonstrate that they are not qualified for retention because they cannot adapt socially or emotionally to military life, or because they lack the aptitude, ability, motivation or self discipline for military service, or that they demonstrate characteristics not compatible with satisfactory continued service. The regulation requires that the service of members separated under this provision of the regulation be uncharacterized.

Army Regulation 635-5-1 (SPD Codes) provides the specific authorities (regulatory or directive), reasons for separating soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It states, in pertinent part, that the SPD code of JGA is the appropriate code to assign members being separated by reason of entry level performance and conduct, under the provisions of chapter 11, Army Regulation 635-200. Additionally, Table 2-3
(SPD/RE Code Cross Reference Table), Army Regulation 635-5
(Separation Documents), establishes RE-3 as the proper reentry code to assign to soldiers separated for this reason.

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.

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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 notes the applicant’s contention that, in effect, the NJP action taken against him was improper and his RE-3 code should be changed. However, it finds insufficient evidence to support this claim.

2. The evidence of record confirms that the applicant’s ELS discharge processing, to include the SPD and RE code assignment, was accomplished in accordance with applicable regulations. Further, the Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. Therefore, the Board concludes that the assigned RE-3 code was and still is appropriate.

3. However, this does not mean that the applicant has been completely denied the opportunity to reenlist. Since he is eligible to apply for a waiver, he has the option of visiting his local recruiting station and consulting with recruiting personnel who are required to process waiver requests and can determine if he is eligible to apply for a waiver under current enlistment standards and criteria.

4. 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.

5. 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

__DSJ__ __EJA___ __DPH___ DENY APPLICATION

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

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INDEX

CASE ID	AR2001061595
SUFFIX
RECON
DATE BOARDED	2001/11/06
TYPE OF DISCHARGE	UNCHAR
DATE OF DISCHARGE	2000/11/13
DISCHARGE AUTHORITY	AR 635-200 C11
DISCHARGE REASON	ELS
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 04	100.0300
2.
3.
4.
5.
6.