MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 4 April 2002
         DOCKET NUMBER: AR2001064103

         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. Arthur A. Omartian		Chairperson
Mr. Roger W. Able		Member
Ms. Karen Y. Fletcher		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 reentry eligibility (RE) code of RE-3 be changed to a code of RE-1.

APPLICANT STATES: That he received an honorable discharge and he believes that he should received a more favorable reenlistment code. He states that both his reduction in rank and his discharge were unfair because he was not able to produce witnesses, thus he was deprived of his rights. He believes the memorandum that he submits from the U.S. Army Trial Defense Service, Fort Hood, Texas, dated 3 November 1998, substantiates his contention. He states that he has matured, his attitude has improved, and that he only wants to serve his country in its hour of need. He also submits in support of his request an order for award of the Good Conduct Medal (GCMDL), a recommendation for award of the Army Achievement Medal (AAM), a character reference, dated 17 October 1997 and a Memorandum for Record, dated 3 November 1998. There is no evidence available to indicate that the AAM was ever approved.

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

That prior to the period of enlistment under review, he served honorably in the Regular Army (RA) from 15 September 1993-15 July 1997. This active military service equals 3 years, 10 months and 1 day. He was not issued a DD Form 214 (Certificate of Release or Discharge From Active Duty) at the time of separation.

On 16 September 1997, he reenlisted in the RA for a period of 5 years. His rank at reenlistment was Specialist (SPC/E-4). He reenlisted for a selective reenlistment bonus in military occupational specialty (MOS) 13F (Fire Support Specialist) and for his current duty station, Fort Hood.

Between March 1997 and July 1998, the applicant was counseled on twelve separate occasions for numerous offenses to include failure to accomplish his mission after being given ample time to do so; for lying to his superiors; for failure to shave before the morning formation on multiple occasions; for failure to report to duty for an entire day; for missing Army Physical Fitness Training on more than one occasion; for reporting to work in civilian clothing; for reporting to work with his hair improperly dyed yellow/blonde; and for failure to ensure his hair color was in compliance with regulation after being counseled on three separate occasions.

On 28 July 1998, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for disobeying a lawful order given by a noncommissioned officer to ensure his hair color was in compliance with regulations. In accepting NJP, he indicated that he desired a personal appearance before the NJP authority which, in turn, provided him the possibility of presenting witnesses and matters in defense, mitigation and/or extenuation. The applicant contends that he was denied the opportunity to present witnesses by the NJP authority. Instead, the NJP authority administered his punishment which included reduction from pay grade E-4 to pay grade E-3, forfeiture of $287.00 pay for 1 month, and 14 days’ extra duty and restriction.

On 29 July 1998, the applicant appealed his NJP action. On 13 August 1998, the appropriate authority considered the applicant's appeal and his punishment of forfeiture of $287.00 pay for 1 month was remitted. On the same date the Staff Judge Advocate's (SJA) Office reviewed the applicant’s NJP and his appeal and stated that the proceedings were conducted in accordance with law and regulation and that the punishments imposed were not unjust or disproportionate to the offenses committed.

On 4 August 1998, the applicant was referred to the Fort Hood Mental Health Services Clinic by his chain of command after he overdosed on over-the-counter cold medications in a suicide gesture with injuries. He was hospitalized and underwent psychiatric evaluation from 4-10 August 1998 by a professionally trained psychiatrist. The psychological testing revealed that he had an adjustment disorder with depressed mood, and a severe personality disorder, not otherwise specified, which was not conducive to further military service. During the evaluation process, it was also revealed that two years prior to his suicide gesture he had been hospitalized for psychiatric care when he was assigned to Korea. The extent of his previous psychiatric care is not a matter of record.

On 10 August 1998, a psychiatrist determined that the applicant had the mental capacity to understand and participate in administrative proceedings. It was also determined that rehabilitation attempts were not likely to be successful. It was recommended that the applicant be expeditiously separated under the provisions of chapter 5, Army Regulation (AR) 635-200, for a personality disorder.

On 17 August 1998, the applicant’s unit commander notified him that he was initiating action to separate him with an honorable discharge (HD) prior to the expiration of his term of service under the provisions of chapter 5, AR 635-200, by reason of personality disorder. On the same date, the applicant acknowledged notification.

On 21 August 1998, the applicant consulted with legal counsel and he was advised of the basis of the contemplated separation and informed of his rights and the effects of a waiver of those rights. He was also advised that he was not entitled to a hearing by a board of officers. He did not elect to make a statement in his own behalf.

On 24 August 1998, the intermediate commander recommended approval of the separation action with an HD under the provisions of chapter 5, AR 635-200, by reason of personality disorder.

On 25 August 1998, competent authority approved the recommendation and directed the issuance of an HD under the provisions of chapter 5, AR 635-200, by reason of personality disorder.

On 18 September 1998, the applicant was separated with an HD as a result of a personality disorder. He had completed a total of 5 years and 4 days of active military service and he had no recorded lost time. He was assigned an RE code of RE-3.

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. AR 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.

A code of RE-3 applies to persons not qualified for continued Army service; however, the disqualification is waivable. Discharge by reason of a personality disorder under the provisions of chapter 5, AR 635-200 requires an RE code of RE-3.

Army Regulation 635-200, provides the basic authority for the separation of enlisted personnel. Paragraph 5-13 provides that a soldier may be separated for a personality disorder, not amounting to disability under AR 635-40, that interferes with assignment to, or performance of duty. The regulation requires that the condition be a deeply ingrained, maladaptive pattern of behavior of long duration that interferes with the soldier's ability to perform duty. The regulation also directs that a commander will not take action prescribed in this chapter in lieu of disciplinary action, requires that the diagnosis conclude that the disorder is so severe that the soldier’s ability to function in the military environment is significantly impaired, and states that a separation for a personality disorder is not appropriate when separation is warranted under other provisions of AR 635-200, AR 604-10 or AR 635-40. Army policy requires the award of a fully honorable discharge in such cases, unless the soldier is in an entry level status, or he or she has a general court-martial or more than one special court-martial.

According to the Manual for Courts-Martial (MCM), if a servicemember requests personal appearance, the servicemember shall be entitled, upon request, to have present witnesses, including those adverse to the servicemember, if their statements will be relevant and they are reasonably available. For purposes of this subparagraph, a witness is not reasonably available if the witness requires reimbursement by the United States for any cost incurred in appearing, cannot appear without unduly delaying the proceedings, or, if a military witness, cannot be excused from other important duties. The NJP authority will decide whether a witness is relevant and/or reasonably available.
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's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

3. The type of discharge directed and the narrative reason for separation is appropriate considering all the facts of the case.

4. Nonjudicial punishment is different from a trial by court-martial. An NJP hearing is an informal proceeding where the rules of evidence are not strictly applied. Before he elected to accept NJP, the applicant was made aware of these differences and of his right to demand court-martial where he would receive the full protection of the rules of evidence. Instead he chose to have the matter settled at NJP. The NJP was imposed in compliance with applicable laws, regulations and policies. The punishment imposed was neither unjust nor disproportionate to the offense, and there is no evidence of any substantive violation of any of the applicant's rights. The NJP authority was the sole decider of the relevance and availability of witnesses and was within his authority to deny the appearance of any and all witnesses. The Board notes that the applicant’s NJP was reviewed by legal counsel and found to be legally sufficient.

5. The applicant was not discharged as a result of the NJP that he received on 28 July 1998. He was discharged because of a properly diagnosed personality disorder.

6. An RE-3 code 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.

7. The documents that the applicant provided do not provide a basis for changing his RE code.

8. In view of the circumstances in this case, the assigned RE code was, and is still appropriate. The applicant has submitted no evidence that his RE code is in error or should be changed.

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

__AAO__ __RWA __ __KYF__ DENY APPLICATION

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

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INDEX

CASE ID	AR20010 64103
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020404
TYPE OF DISCHARGE	(HD)
DATE OF DISCHARGE	19980918
DISCHARGE AUTHORITY	AR635-200
DISCHARGE REASON	A93.00
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	144.9323
2.
3.
4.
5.
6.