MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 16 July 2002
         DOCKET NUMBER: AR2002073076

         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. Nancy L. Amos		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Mr. Melvin H. Meyer		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, correction of appropriate military records to show a reentry eligibility (RE) code which would allow reenlistment. In effect, this constitutes a request for removal or waiver of those disqualifications which preclude reenlistment.

APPLICANT STATES: That he reenlisted while in Korea and was sent to Fort Bliss, TX. He never saw his wife and child at Fort Bliss, TX. He feels he should have received counseling regarding the fact he could not make his family move to his new duty station. He was a young soldier and his mind could not handle not seeing his family. He started using drugs. He would like to join the Reserve. He provides no supporting evidence.

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

He was born on 16 January 1962. After having had prior service in the Army National Guard from January 1984 to March 1985, he enlisted in the Regular Army on 8 April 1985. He was honorably discharged on 7 October 1987, while in Korea, for the purpose of immediately reenlisting on 8 October 1987. He was assigned to Fort Bliss, TX on or about 4 March 1988.

On 14 December 1988, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for wrongfully using cocaine between 12 and 21 November 1988. Apparently, he was enrolled in the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) at that time.

On 17 January 1989, the applicant received a local bar to reenlistment. The commander cited the applicant’s Article 15 and noted that he had received numerous counseling statements in the last 6 months regarding his poor attitude and appearance.

An ADAPCP Client Progress Report (CPR) dated 24 July 1989 indicates the reason for the report was the applicant’s release from the program. The ADAPCP counselor assessed his progress during the program as unsatisfactory but recommended his retention on active duty. His commander appraised his progress as satisfactory (efficiency and conduct) and recommended he be retained on active duty.

On 28 September 1989, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for signing, with intent to deceive, the headcount sheet at the dining facility when he did not have a meal card, and for three times failing to go to his appointed place of duty.

A U. S. Army Criminal Investigation Command (CID) Report of Investigation dated 24 October 1989 titled the applicant for wrongful possession and distribution of marijuana and conspiracy. The offenses took place on 25 July 1989 off-post and the investigation had been coordinated with the Narcotics Division, El Paso Police Department, El Paso, TX. The applicant apparently spent three days in civil confinement as a result of this incident. A check of civilian and military police criminal intelligence files disclosed that, besides the November 1988 incident for which he received an Article 15, the applicant wrongfully possessed marijuana and resisted apprehension at Fort Lee, VA on 29 June 1984.

On 15 December 1989, the applicant’s mental status was evaluated. He was found to be mentally responsible, and to have the mental capability to understand and participate in proceedings. He was cleared for chapter action.

On 15 December 1989, the applicant’s commander initiated action to separate the applicant under the provisions of Army Regulation 635-200, chapter 14 for serious misconduct in that he showed a repeated problem with using illegal drugs.

On 18 December 1989, the applicant was advised by consulting counsel of the basis for the contemplated separation action. He submitted a statement on his own behalf. He stated he was not proven guilty of any criminal charges. He would like to separate at the completion of his enlistment (in eight months) at a minimum but would prefer to earn back his E-4 and reenlist. He lost his family while serving in Korea. During the two years he was assigned at Fort Bliss he saw his daughter once. He made mistakes but he worked hard and attempted to do his best. He would like another chance to rehabilitate himself in another unit.

On 23 January 1990, the appropriate authority approved the request and directed the applicant receive a general discharge.

On 1 February 1990, the applicant was discharged, with a general discharge, in pay grade E-3, under the provisions of Army Regulation 635-200, chapter 14, for misconduct – abuse of illegal drugs. He had completed a total of 5 years, 2 months, and 6 days of creditable active service and had 3 days of lost time. He was given a separation code (SPD) of JKK (commission of a serious offense, abuse of illegal drugs) and RE codes of 3, 3B, and 3C.

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, convictions by civil authorities, desertion or absence without leave. Paragraph 14c prescribes separation for commission of a serious offense. Paragraph 14-c(2) states that abuse of illegal drugs is serious misconduct. Paragraph 14-c(2)(b) states that second-time drug offenders, grades E1 – E-9, must be processed for separation. 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.

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 U.S. 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. At the time, RE 3B applied to persons who had lost time during their last period of service. RE 3C applied to persons who did not meet the reentry grade and service criteria.

Recruiting personnel have the responsibility for initially determining whether an individual meets current enlistment criteria. They are required to process a request for waiver under the provisions of Chapter 4, Army Regulation 601-210.

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 Board notes that the applicant was 23 years old at the time he enlisted in the Regular Army and 27 years old at the time he committed the final drug offense for which he was separated. The Board understands his frustration at not being with his family for several years but fails to understand how that mitigates his involvement in a drug distribution incident in 1989 or a possession of marijuana incident in 1984 before he went to Korea.

3. In view of the fact the applicant was properly processed for separation after three identified incidents of a drug offense and subsequently separated, the assigned reentry code of RE 3 was and still is appropriate. The applicant was disqualified from reenlistment but the disqualification is waivable.

4. Since enlistment criteria does change, and since an individual has the right to apply for a waiver, the applicant should periodically visit his local recruiting station to determine if he should apply for a waiver.
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

__FNE__ __MHM__ __DPH__ DENY APPLICATION

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

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INDEX

CASE ID	AR2002073076
SUFFIX
RECON
DATE BOARDED	2002/07/16
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	100.03
2.
3.
4.
5.
6.