RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        25 October 2005
      DOCKET NUMBER:  AR20050002940


      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. Joyce A. Wright               |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. James E. Anderholm            |     |Chairperson          |
|     |Mr. Jose A. Martinez              |     |Member               |
|     |Ms. LaVerne M. Douglas            |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his Reentry (RE) Code "4" be change to a
more favorable code so that he may reenter the Army.

2.  The applicant states that he believes the RE Code given him was unjust
due to the facts of the case and verbal agreement between counsel and him.
He was involved in an incident where he and another Soldier had gone to an
ATM (automated teller machine) in Germany to get money.  They had been
drinking with their company celebrating a successful field problem.  They
ran out of money, so they went to the nearest ATM, intoxicated.  The other
Soldier inserted his card in the receipt slot.  Thinking that the machine
stole his card, they got angry and the applicant kicked the machine then
headed back thinking that the other Soldier was coming with him.  It turned
out that the other Soldier, in his anger, had knocked over the receipt
machine damaging the base plate of the machine.

3.  Later that night, the military police (PM) questioned a group of them
at the local pub.  They were holding another Soldier for damaging the
machine.  The applicant told the MPs that he and the other Soldier were
there, not the Soldier they had.  The MPs took their statements.  The next
day, he and the other Soldier went to the bank to speak with the manager.
They paid for the damages and apologized for their actions.  He said he
understood and wrote a letter stating that he did not want us to get in any
trouble for this and that they had paid for it.  A month later, they were
charged with destruction of private property.  Being a model Soldier and
never been in any trouble, he was told nothing would happen to him.  His
unit then deployed to Kosovo.  He had to stay back until his legal issue
was resolved.  Counsel called him in and asked if he would testify against
the other Soldier.  The other Soldier had been in trouble a lot since he
joined the Army.  They said he was bad for the Army and that he could help
get rid of him.  He declined because he may not have been a good Soldier
but he was a good person.  He was then called back in and counsel offered
him a chapter 10, so he would not have to go through court-martial
proceedings.  He was told that he would be discharged under honorable
circumstances and would be allowed back in the military if he wished.  He
had no one in his unit to ask about this deal, so he took it.

4.  When the documents arrived signed by the general, the discharge was
other than honorable.  He said to counsel, he will go to court because this
was not what he agreed on.  Counsel said that it was too late because the
general had signed it.  He describes the sequence of events that occurred
to his friend, a Soldier, and the promise he made to him.  He decided to
quit college and reenlist; however, his RE Code prevents him from
reenlisting.  He attempted to have his discharge upgraded and two of the
five board members agreed that it should be upgraded, but that was not
enough.  He has sought assistance from his Congressman and now turns to
this Board for justice.  He concludes by stating that he will not give up
until he gets back in and fulfills his promise.

5.  The applicant provides a personal letter and a copy of his DD Form 214
(Certificate of Release or Discharge from Active Duty) in support of his
request.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military records show he entered active duty on 19 June
2001, as a light weapons infantryman (11B), with prior military service.
He was advanced to E-3 effective 1 June 2002.

2.  All the documents containing the facts and circumstances surrounding
the applicant's discharge are not present in the available records.
However, the applicant submitted a copy of his DD Form 214 which shows that
on 21 May 2003, he was discharged under the provisions of Army Regulation
635-200, chapter 10, for the good of the service, in lieu of trial by court-
martial, in the pay grade of E-1.  He was furnished an under other than
honorable conditions (UOTHC) discharge.  On the date of his discharge, he
had a total of 1 year, 11 months, and 3 days of creditable service.  He was
issued an RE Code of "4."

3.  Army Regulation 635-200 sets forth the basic authority for separation
of enlisted personnel.  Chapter 10 of that regulation provides, in
pertinent part, that a member who has committed an offense or offenses for
which the authorized punishment includes a punitive discharge, may at any
time after the charges
have been preferred, submit a request for discharge for the good of the
service,
in lieu of trial by court-martial.  A discharge under other than honorable
conditions is normally considered appropriate.

4.  The applicant applied to the Army Discharge Review Board (ADRB) for an
upgrade of his discharge on 1 April 2004.  The ADRB determined that his
discharge was proper and equitable and voted unanimously not to change the
narrative reason and voted 2 to 3 to change the characterization, and
denied his request on 23 December 2004.

5.  Pertinent Army regulations provide that prior to discharge or release
from active duty, individuals will be assigned reentry 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 reentry codes, including RA RE
codes.

6.  RE-4 applies to persons not qualified for continued service by virtue
of being separated from the service with non-waivable disqualification such
as misconduct.

7.  RE-3 applies to persons not qualified for continued Army service, but
the disqualification is waivable for reenlistment after a 2-year period has
elapsed since discharge.  Certain persons who have received nonjudicial
punishment are so disqualified, as are persons with bars to reenlistment,
and those discharged under the provisions of chapter 9, 10, 13, 14, and 16
of Army Regulation        635-200.

8.  RE-2 applies to Soldiers being separated before completing a contract
period of service whose reenlistment is not contemplated.

9.  RE-1 applies to persons completing their term of service (ETS) who are
considered qualified to reenter the Army.

10. Since enlistment or reenlistment criteria do change and the applicant
has expressed a desire to return to service in the Regular Army, and since
an individual has the right to apply for a waiver, he should visit his
local recruiting station to apply for a waiver.

DISCUSSION AND CONCLUSIONS:

1.  Since all documents pertaining to the applicant's discharge are not on
file in his service record, in the absence of evidence to the contrary,
Government regularity must be presumed and it must be presumed that the
applicant’s administrative separation was accomplished in compliance with
applicable regulations with no procedural errors, which would tend to
jeopardize his rights.

2.  It is apparent, from the authority for the applicant's discharge,
that charges were preferred against the applicant; however, these
documents are not available for review and the applicant failed to
provide this information to the Board.

3.  The applicant's personal letter which describes the sequence of events
that occurred pertaining to destruction of private property are noted;
however, there is no evidence, and the applicant has provided none, to show
what actually occurred.
4.  The applicant has provided no evidence to show that the RE Code issued
to him at the time of discharge was improper or inequitable or should be
changed now.

5.  The applicant wishes to reenlist; however, his RE Code of "4" prevents
him from doing so.  RE Code 4 is consistent with the reason and authority
for separation.

6.  In order to justify correction of a military record, the applicant must
show, to the satisfaction of the Board, or it must otherwise appear, that
the record is in error or unjust.  The applicant has failed to submit
evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

_LMD___  _JEA____  _JAM ___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.


                                  _    James E. Anderholm___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050002940                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051025                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |20030521                                |
|DISCHARGE AUTHORITY     |AR 635-200, chapter 10                  |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |100                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |

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