PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 25 July 2002
         DOCKET NUMBER: AR2001065465


         I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Ms. Beverly A. Young		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O'Connor		Chairperson
Mr. Richard T. Dunbar		Member
Mr. Kenneth W. Lapin		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant requests, in effect, reconsideration of his previous appeal to correct his military records to show a more favorable Reentry Eligibility (RE) code. The applicant also questions the statement that he abused illegal drugs which is a new issue.

3. The applicant states, in effect, that the previous board decision stated "abuse of illegal drugs". He contends that there were no "illegal" drugs taken. He states that there was an incident in which "prescribed" drugs were taken and there was a concern about the amount that was taken. He also contends that the AWOL was investigated by the Army Discharge Review Board (ADRB) and "the last order given was followed." He wants to clearly understand the reason for the denial. He would like the Board to consider the investigation that was performed by the ADRB.

4. The Memorandum of Consideration (MOC) by the Army Board for Correction of Military Record's (ABCMR) in Docket Number AR1999025006 on 4 November 1999 is incorporated herein by reference as if wholly set forth.

5. The applicant reapplied to this Board (ABCMR) in October 2001 for reconsideration of his request to show a more favorable RE code and to question the term "abuse of illegal drugs" used in the previous ABCMR case.

6. The applicant’s contentions regarding his RE code are new arguments which will be considered by this Board.

7. This issue regarding abuse of illegal drugs has not been previously considered by the ABCMR. This new issue will be considered by the Board.

8. The applicant enlisted in the Regular Army on 7 February 1986 for a period of three years. He successfully completed basic and advanced individual training and was assigned to Fort Bragg, North Carolina, as a food service specialist. He was promoted to specialist four on 1 July 1987 and reenlisted on 10 June 1988 for a period of four years.

9. On 30 January 1989, the applicant was punished under Article 15, Uniform Code of Military Justice (UCMJ) for failing to go to his appointed place of duty. He received a second Article 15, UCMJ on 28 November 1989 for being AWOL from 8 May 1989 through 29 June 1989.

10. The applicant's personnel records contain a DA Form 2173 (Statement of Medical Examination and Duty Status), dated 24 February 1989, which indicates that the applicant was admitted to Womack Army Community Hospital on 24 January 1989 for multiple overdose of drugs. Medical records also indicate that the applicant "consumed a large amount of medication for a drug overdose."
11. On 12 February 1990, the applicant’s unit commander notified him of pending separation action under the provisions of Army Regulation 635-200, paragraph 14-12(c) for misconduct based on commission of a serious offense – "abuse of illegal drugs." The unit commander cited the reason for his proposed action as the applicant’s Article 15 for being AWOL. The applicant acknowledged the notification, consulted with legal counsel, and submitted statements in his own behalf. On 6 March 1990, the separation authority approved the separation and directed that the applicant be issued a General Discharge Certificate.

12. Accordingly, the applicant was discharged on 9 April 1990 under the provisions of Army Regulation 635-200, paragraph 14-12(c) for misconduct – commission of a serious offense. He had completed 4 years, 2 months and 3 days of creditable service.

13. The applicant's DD Form 214 shows he was discharged in pay grade E-2 and was issued RE codes of RE-3 and RE-3C.

14. On 10 March 1994, the applicant applied to the ADRB for an upgrade of his discharge to honorable and to change the reason of discharge to "Dependent Hardship."

15. The applicant's personnel records contain an OSA Form 172 (Case Report and Directive) from the ADRB. Under Part VI (Issues and Findings) of this document, the ADRB concluded that, "the administrative discharge proceedings contained limited use information, abuse of illegal drugs." As a result of this finding, the ADRB voted to change the characterization of service to honorable and determined that the reason for discharge was proper and equitable and voted not to change it. The applicant's new discharge document shows he was discharged under the provisions of Army Regulation 635-200, chapter 5, section II, directed by the Secretary of the Army and issued RE code of RE-3C. Item 29 (Dates of Time Lost During this Period) on his discharge document does not show any lost time.

16. On 26 February 1999, the applicant applied to the ABCMR to change his RE codes of RE-3 and RE-3C to a more favorable RE code.

17. In the ABCMR's Memorandum of Consideration (MOC) in Docket Number AR1999025006, dated 4 November 1999, the Board states that one of the applicant's offenses was "abuse of illegal drugs."

18. 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.

19. 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.

20. RE-3C applies to persons who have completed more than 4 months service who do not meet the basic eligibility pay grade requirements of chapter 2, Army Regulation 601-280, or who have been denied reenlistment under the Qualitative Retention Process according to chapter 10, Army Regulation 601-280.

21. Army Regulation 601-280, in effect at the time, governed the Army Retention Program for enlisted soldiers. In pertinent part, the regulation prescribed retention control points (RCP). The RCP required that a soldier must be at a certain rank at specific years of service in order to reenlist without a waiver. The regulation, in effect at the time, stated that soldiers in the rank of
E-2 and below were not authorized to reenlist.

CONCLUSIONS:

1. Records show that the applicant was separated under the provisions of Army Regulation 635-200, paragraph 14-12(c), for misconduct – commission of a serious offense and was assigned a RE code of RE-3 in accordance with regulations then in effect.

2. When the ADRB upgraded the character of service to honorable and changed the narrative reason from misconduct to Secretarial Authority, there was no basis for the RE code of RE-3 and it was removed when his new DD Form 214 was prepared.

3. At the time of his separation from active duty, the applicant was in pay grade E-2 with over 4 years of service. As a result, he was not eligible to reenlist without a waiver. Therefore, the RE code of RE-3C is correct as currently constituted and there is no regulatory basis for amending the applicant's RE code of RE-3C.

4. The Board considered the applicant's contention that his previous board decision states "abuse of illegal drugs" and that there were no "illegal" drugs taken.
5. Upon review of all the facts in this case, the Board noted that the discharge processing documents refer to "abuse of illegal drugs." The Board also noted that records show he took an overdose of medicine.

6. The Board has determined that the ABCMR's Memorandum of Consideration in Document Number AR1999025006 on 4 November 1999 incorrectly reflects "abuse of illegal drugs". As a matter of equity, it would be appropriate to change all references to "abuse of illegal drugs" to "abuse of prescribed drugs" on the previous board decision.

7. The Board also considered the applicant's contention regarding his offense of being AWOL. However, his DD Form 214 does not record any lost time during this period of service.

8. In view of the foregoing findings and conclusions, it would be appropriate to correct the applicant’s records, but only as recommended below.

RECOMMENDATION:

1. That all of the Department of the Army records related to this case be corrected by replacing the entry "abuse of illegal drugs" with "abuse of prescribed drugs" on the individual concerned Memorandum of Consideration, dated 4 November 1999.

2. That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:

RVO____ RTD____ KWL_____ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  Raymond V. O'Connor___
                  CHAIRPERSON

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INDEX

CASE ID	AR2001065465
SUFFIX
RECON
DATE BOARDED	20020725
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	19900409
DISCHARGE AUTHORITY	AR635-200, Chapter 5 Section II
DISCHARGE REASON	Directed by the Secretary of the Army
BOARD DECISION	Grant in Part
REVIEW AUTHORITY	Mr. Schneider
ISSUES 1.	100.0300
2.
3.
4.
5.
6.