IN THE CASE OF:	  

		BOARD DATE:	        07 AUGUST 2008

		DOCKET NUMBER:  AR20080008041 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his rank be restored and that his Reentry (RE) Code be changed to a more favorable code. 

2.  The applicant states, in effect, that prior to 31 July 2003, he had served 
3 years of military service that was consistent with Army values and beliefs.  He received two letters of recognition and all evaluations and counselings were positive and his service up to that point was without incident.  He goes on to state that the change in his demeanor came about as a result of a compounded medical issue/chronic pain that he was being treated for at Tripler Army Medical Center (TAMC).  As a result, he needed physiological counseling in order to deal with the physical and mental anguish.  He continues by stating that a physician notified his chain of command of the ongoing problem and recommended that he be medically discharged.  However, the chain of command started counseling him for seeking medical attention and for failure to go to his place of duty. Although the procedures for a medical board were on-going, his unit initiated administrative discharge procedures.  He further states that nonjudicial punishment was imposed against him and he demanded trail by court-martial; however, he was denied a trial by court-martial and was unjustly reduced in rank from E-4 to E-2 for something he did not say or was taken out of context.  He also states that he was separated without having his day in court and believes that his rank should be restored and that he be given a more favorable RE Code. 

3.  The applicant provides a copy of a Certificate of Appreciation, a Copy of a Certificate of Achievement and a copy of his Good Conduct Medal Certificate. 

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 20 September 2000 for a period of 4 years and training as a signal collection/identification analyst.  He successfully completed his training and was transferred to Hawaii for assignment to a military intelligence company.  He was advanced to the pay grade of E-4 on 11 September 2002.  

2.  During the period of August 2003 to March 2004, the applicant was counseled for a variety of offenses which included disobeying a lawful order from his company commander, being absent from his place of duty, missing physical training, being late for work, for making a threat to kill another Soldier, and for forging a noncommissioned officer’s initials to indicate that he had completed his command task testing.   

3.  On 16 March 2004, nonjudicial punishment (NJP) was imposed against the applicant for disobeying a lawful order from a superior commissioned officer, for violating a lawful general regulation by taking leave without signing out, for forging the initials of a noncommissioned officer with the intent to deceive, for five specifications of failure to go to his place of duty and for two specifications of communicating a threat to kill two Soldiers.  He did not demand trial by court-martial and his punishment consisted of a reduction to the pay grade of E-2, a forfeiture of pay (suspended for 2 months) and restriction.  The applicant did not appeal the punishment. 

4.  On 26 March 2004, the applicant’s commander notified him that he was initiating action to separate him from the service under the provisions of Army Regulation 635-200, paragraph 14-12b due to a pattern of misconduct.  He cited as the basis for his recommendation the applicant’s disciplinary record and his failure to respond to numerous counseling sessions regarding his negative behavior.

5.  The applicant waived all of his rights and elected not to submit a statement in his own behalf.  

6.  The recommendation for discharge was approved on 1 April 2004 and the discharge authority directed that he be furnished a General Discharge Certificate. 

7.  Accordingly, he was discharged under honorable conditions on 29 April 2004, in the pay grade of E-2, under the provisions of Army Regulation 635-200, paragraph 14-12b, for misconduct – pattern of misconduct.  He had served 3 years, 7 months and 10 days of total active service.

8.  On 19 May 2005, the applicant applied to the Army Discharge Review Board (ADRB) requesting that his general discharge be upgraded to an honorable discharge.  He contended that he was pending a medical discharge at the time and that he was taking two forms of psychiatric drugs that were affecting his duty performance.  The ADRB determined that his discharge was improper because the wrong form of notification was used and on 27 January 2006, the ADRB voted to upgrade his discharge to fully honorable and to change his narrative reason for separation to “Secretarial Authority.”  The ADRB also determined that his RE Code should remain as a “3”.

9.  Accordingly, the applicant was issued a new DD Form 214 and Honorable Discharge Certificate.

10.  A review of the available records fails to show any indication that the applicant was pending separation through the physical disability evaluation system. 

11.  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 processing into the Regular Army and the 
USAR.  Chapter 4 of the regulation in effect at the time prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of armed forces RE codes.

12.  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 5, 9, 10, 13, 14, and 16 of Army Regulation 635-200.  A waiting period of 2 years from separation is required before a waiver may be submitted through a local recruiting office.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that NJP was unjustly imposed against him and he was unjustly reduced to the pay grade of E-2 has been noted and found to lack merit.  It appears that the nonjudicial punishment was imposed in compliance with applicable laws, regulations, and policies by a commander empowered to do so. The punishment was not disproportionate to the offenses and there is no evidence of any violations of the applicant’s rights.  There is also no evidence to show that he was denied trial by court-martial or that he ever demanded trial by court-martial.  Accordingly, there is no basis to restore him to the pay grade of   E-4. 
2.  While it does not appear that the applicant was disadvantaged by the wrong notification letter being used at the time, especially since the notification used afforded him more rights than he was entitled and since he waived all of his rights, the ADRB granted him an upgrade of his discharge and specifically noted that he was not entitled to a change of his RE Code.

3.  The applicant was issued the proper RE Code that is commensurate with the facts and circumstances surrounding his discharge.  However, the applicant is not precluded from applying for a waiver of his RE Code at his local recruiting office, if he should decide to enlist in the Armed Forces.  Such waivers are usually contingent on the needs of the service at the time of application. 

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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   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.




      ___        XXX                ___
                CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont)                                         AR20080008041



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ABCMR Record of Proceedings (cont)                                         AR20080008041



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