MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 17 June 2003
         DOCKET NUMBER: AR2002079351

         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. Fred N. Eichorn		Chairperson
Mr. Hubert O. Fry, Jr.		Member
Ms. Marla J. N. Troup		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 be changed to one that is consistent with an honorable discharge (HD).

APPLICANT STATES: That he believes his RE-code is unfair and does not appropriately reflect his honorable service or the awards that he received. He states that he received the Southwest Asia Service Medal with three bronze service stars, the Army Commendation Medal, the National Defense Service Medal, the Overseas Service Ribbon, and the Kuwait Liberation Medal.

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

That prior to the period of enlistment under review the applicant served honorably in the Regular Army (RA) from 26 July 1990 until he was separated on 30 March 1994 for the purpose of immediate reenlistment. During this period of service, the applicant served in Kuwait for a period of 4 months and in Germany for a total of 32 months. On 1 September 1993, he was assigned to Fort Knox, Kentucky.

On 31 March 1994, while assigned to Fort Knox, the applicant reenlisted in the RA for 2 years in his previous military occupational specialty (MOS) 12B (Combat Engineer) and in pay grade E-4.

Between June 1994 and March 1995, general counseling forms show that the applicant was counseled on numerous occasions for various reasons, to include: failing to follow simple instructions; continuously being late for formation; lacking motivation; failing to proficiently perform at his skill level; not participating at an appropriate level; causing training distractions; failing to accomplish the mission; showing a lack of responsibility and unsatisfactory performance; being absent from formation and failing to report to formation in the appropriate uniform; showing a lack of initiative and ability to perform assigned tasks; and for procrastination.

On 21 September 1994, nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), was imposed against the applicant for willfully disobeying a lawful order given by a noncommissioned officer (NCO). His punishment included reduction from pay grade E-4 to pay grade E-3, forfeiture of $258 pay per month for 1 month, 14 days of extra duty and 7 days on restriction. On 8 December 1994, a second NJP was imposed against him for disobeying a lawful order given by a NCO and his punishment included reduction to pay grade E-2.

On 13 December 1994, a bar to reenlistment was approved against the applicant. The basis for the bar was the numerous counseling statements and the NJP's listed above. He did not appeal the bar.

On 19 January 1995, the applicant underwent a mental status evaluation that determined he was psychologically cleared for separation. On 30 January 1995, a medical examination determined that the applicant was qualified for separation.

On 8 March 1995, the applicant's commander officially notified him that he was being recommended for discharge under the provisions of chapter 13, Army Regulation (AR) 635-200 for unsatisfactory performance with an HD. He was informed that the basis for the contemplated separation action was poor duty performance. He was also informed of the rights available to him. He was not entitled to a personal appearance before an administrative separation board.

On an unknown date, the applicant acknowledged notification and requested that he be separated with an HD based on his awards and his overall service record. He indicated that he had served in Saudi Arabia as a combat engineer; that he had been involved in both major and minor training and field exercises; that he had honorably completed his first period of enlistment; that he had requested separation in November 1994, and he had been denied. He also believed the problems he was experiencing stemmed from a personality conflict with his first line supervisor.

On an unknown date, the appropriate authority approved the separation recommendation and directed the issuance of a HD.

On 16 March 1995, the applicant was separated for unsatisfactory performance under the provisions of Army Regulation 635-200 with an HD. His DD Form 214 shows that he had completed a total of 4 years, 7 months and 21 days of creditable service. He had completed 11 months and 16 days of active military service on the enlistment under review and 3 years, 8 months and 5 days on his prior period of enlistment. He was assigned a RE-code of RE-3.

The applicant's DD Form 214 also shows the awards to which he made reference, as well as the Army Service Ribbon, the Expert Qualification Badge-Hand Grenade, and the Marksman Qualification Badge-M-16 Rifle.

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 enlisting and processing into the RA and the eligibility for prior service applicants 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, 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.

AR 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance, and provides, in pertinent part, that commanders will separate a member under this chapter when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory soldier.

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 was separated under the provisions of chapter 13, AR 635-200, due to unsatisfactory performance and assigned an RE-code of RE-3. This 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.

3. The applicant's awards and his overall service record were taken into consideration and he was separated with an HD; his awards, however, have no bearing on his RE-code.

4. In view of the circumstances in this case, the assigned RE code shown on the applicant's DD Form 214 was, and still is, appropriate. It is the proper code for a soldier separated for unsatisfactory performance. The applicant has submitted no evidence that this code is in error or should be changed.

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___ __hof___ __mjnt__ DENY APPLICATION

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

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INDEX

CASE ID	AR2002079351
SUFFIX
RECON
DATE BOARDED	20030617
TYPE OF DISCHARGE	(HD)
DATE OF DISCHARGE	19950316
DISCHARGE AUTHORITY	AR 635-200, Chap 13
DISCHARGE REASON	A49.00
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	144.4900
2.
3.
4.
5.
6.