MEMORANDUM OF CONSIDERATION


         IN THE CASE OF


         BOARD DATE: 5 November 2002
         DOCKET NUMBER: AR2002078101

         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
Mrs. Joyce A. Hall		Analyst

The following members, a quorum, were present:

Mr. Melvin H. Meyer		Chairperson
Mr. John T. Meixell		Member
Mr. Eric N. Anderson		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: 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: In effect, that his characterization of service was changed to honorable by the Army Discharge Review Board (ADRB). He is requesting a change in his RE code he wants to continue his military career. In support of his application he submits documents of his case from the ADRB.

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

He enlisted in the Regular Army on 7 September 1989, for 4 years. He served through continuous reenlistments until he was separated from active duty on
19 February 2002. The highest pay grade he achieved was E-6.

On 2 July 2001, the applicant accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, for wrongful use of a controlled substance (cocaine) between 16 April and 5 May 2001. His imposed punishment was a reduction to pay grade E-5, a forfeiture of $500.00 pay per month for 2 months (suspended for 1 month), and 45 days restriction and extra duty.

On 31 July 2001, the applicant received a letter of reprimand for wrongful use of a controlled substance (cocaine) as indicated by a urine sample given during a command directed urinalysis conducted on 15 May 2001.

On 14 August 2001, the commander notified the applicant that he was being recommended for discharge under the provisions of Army Regulation
635-200, chapter 14, Para 14-12c for misconduct (commission of a serious offense). The commander's recommendation was based on the applicant's positive testing for cocaine. He was advised by legal counsel of the basis for the contemplated separation action and the rights available to him. The applicant acknowledged notification; he requested consideration, personal appearance and representation by legal counsel before a board of officers. He was afforded the opportunity to submit statements in his own behalf, but declined to do so.

The applicant's unit commander subsequently recommended that the applicant be retained in the service. The intermediate commander reviewed the proposed discharge action and recommended that the applicant be retained in the service. However, if discharged he recommended characterization of the applicant's service as honorable. The senior intermediate commander recommended approval of the separation action with an under other than honorable conditions discharge.

On 31 October 2001, the applicant was notified to appear before a board of officers, and advised of his rights. The board recommended separation with an
under other than honorable conditions discharge. On 7 January 2002, the separations authority recommended approval of the board's recommendation
for separation with issuance of an under other than honorable conditions discharge.

On 19 February 2002, the applicant was discharged. He completed 1 year and 27 days of active military service in the period under review and had a total of
15 years, 2 months and 18 days of active military service.

The applicant applied to ADRB for a characterization change and a reentry code change. The ADRB gave full consideration of all faithful and honorable service as well as the infraction of discipline, the extent thereof, and the seriousness of offense. The ADRB determined that the characterization of service was inequitable because the applicant's generally accepted personal conduct and performance of duty mitigated his conduct. Accordingly, the Board voted to grant relief in the form of an upgrade of characterization of service to full honorable. The Board also determined that the reason for discharge was proper and equitable and voted unanimously not to change the narrative reason on 21 June 2002.

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. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

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. 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 noted the decision by the ADRB to change the characterization of service to honorable and restoring the applicant's pay grade to E-5. The Board also noted that the ADRB voted unanimously not to change the reason for discharge in this case. After review of the entire case, this Board finds no evidence that his narrative reason for discharge was improper or was inequitable.

2. The applicant was discharged and assigned a reentry code in accordance with regulations in effect.

3. There is no basis for removal of the RE code from the applicant's record. The disqualification upon which the code was based, however, can be waived for reenlistment purposes.

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.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

___MHM_ __JTM __ __ENA__ GRANT

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION

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

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INDEX

CASE ID	AR2002078101
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/11/05
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	2002/02/19
DISCHARGE AUTHORITY	AR635-200, Para 14-12C(2)
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	100.0300
2.
3.
4.
5.
6.