MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 31 January 2002
         DOCKET NUMBER: AR2001062476

         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. Wanda L. Waller		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O’Connor		Chairperson
Mr. Elzey J. Arledge		Member
Ms. Regan K. Smith		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: That his general discharge be upgraded to honorable and that his reentry (RE) code be changed to a more favorable RE code.

APPLICANT STATES: That he never received any reprimands or Article 15’s to deserve the general discharge or RE code of RE-3.

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

The applicant enlisted on 22 January 1991 for a period of 3 years and trained as a food service specialist.

Orders show the applicant received two awards of the Army Achievement Medal for service between 9 August 1991 and 26 August 1991 and for service between
16 November 1991 and 6 December 1991. There is no evidence of any other decorations.

Between 13 August 1992 and 1 December 1992, the applicant was counseled on numerous occasions for various infractions which included a 30 day notice to provide a Family Care Plan, a dishonored check, disobeying lawful orders and failure to report for duty.

On 2 November 1992, a bar to reenlistment was imposed against the applicant. The bar to reenlistment was based on a dishonored check; counseling sessions in which the applicant had been counseled for a Family Care Plan, failure to obey a lawful order and failure to report for duty; and a statement for failure to be at appointed place of duty.

On 17 December 1992, nonjudicial punishment was imposed against the applicant for failing to go at the time prescribed to his appointed place of duty. His punishment consisted of a forfeiture of pay (suspended until 17 March 1993), reduction to E-2 and extra duty. On 23 December 1992, the suspension of the punishment (forfeiture of pay) was vacated. The vacation was based on the applicant absenting himself without leave (AWOL) from his unit from
21 December 1992 to 23 December 1992.

On 23 December 1992, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200, chapter 14, for a pattern of misconduct. The unit commander recommended separation with a general discharge and based his recommendation on the applicant’s nonjudicial punishment, vacated suspension for going AWOL and numerous counseling statements.

On 29 December 1992, the applicant consulted with counsel, waived consideration of his case by an administrative separation board, acknowledged that he may encounter substantial prejudice in civilian life if a general discharge were issued and submitted a statement in his own behalf. In summary, the
applicant requested a chance to serve his country in the U.S. Army Reserve. He contended that his accomplishments (three awards of the Army Achievement Medal) should prove his worthiness as a soldier.

The unit commander initiated action to separate the applicant under the provisions of Army Regulation 635-200, chapter 14, for a pattern of misconduct.
The unit commander based his recommendation for separation on the applicant’s nonjudicial punishment for failing to be at his appointed place of duty, his vacated suspension for going AWOL and his numerous derogatory counseling statements.

On 5 January 1993, the separation authority approved the recommendation for discharge and directed the issuance of a general discharge.

Accordingly, the applicant was discharged on 15 January 1993 with a general discharge under the provisions of Army Regulation 635-200, chapter 14, for misconduct (pattern of misconduct). He had served 1 year, 11 months and
24 days of total active service.

Item 27 (Reentry Code) on the applicant’s DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the entry “RE-3”.

On 20 June 1997, the Army Discharge Review Board determined that the applicant’s discharge was proper and equitable.

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 include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the soldier’s overall record. Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

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 processing into the Regular Army and the USAR. Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment. That chapter includes a list of armed forces 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.

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 considered the applicant’s contention that he never received any reprimands or Article 15’s to deserve the general discharge or RE code of RE-3. However, evidence of record shows that the applicant was counseled on numerous occasions for various infractions. Evidence of record also shows that nonjudicial punishment was imposed against the applicant on 17 December 1992 and he had a vacated suspension for going AWOL.

2. The Board also noted the applicant received two awards of the Army Achievement Medal, not three as he contends.

3. The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

4. The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

5. The applicant failed to convince the Board through the evidence submitted or the evidence of record that his discharge was unjust and should be upgraded.

6. The RE code used in the applicant’s case is correct and was applied in accordance with the applicable regulations.

7. The applicant has failed to show through the evidence submitted or the evidence of record that the RE code issued to him was in error or unjust.

8. 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.

9. 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

RVO____ EJA_____ RKS____ DENY APPLICATION

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

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INDEX

CASE ID	AR2001062476
SUFFIX
RECON
DATE BOARDED	20020131
TYPE OF DISCHARGE	(GD)
DATE OF DISCHARGE	19930115
DISCHARGE AUTHORITY	AR 635-200 Chapter 14
DISCHARGE REASON	Pattern of misconduct
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	110.0200
2.	100.0300
3.
4.
5.
6.