MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 7 May 2002
         DOCKET NUMBER: AR2001062531

         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
Mr. Lee Cates		Analyst

The following members, a quorum, were present:

Mr. Samuel A. Crumpler		Chairperson
Mr. Kenneth W. Lapin		Member
Mr. John T. Meixell		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: That he was not informed about the RE-4 code. It was brought to his attention while he was out-processing that he could rejoin [the Army] at a later date. Further, he indicates that if he had been properly informed of the RE-4 code, he would have rather been sent back to his unit and faced a court-martial, at least he would have had a choice later.

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

The applicant served in the Kentucky Army National Guard for 1 year, 1 month and 8 days, during which he served on his initial active duty for training for 4 months and 3 days (15 September 1997 to 17 January 1998). He was awarded the Army Service Ribbon.

On 2 December 1998, he enlisted in the Regular Army (RA) for 3 years in pay grade E-2.

During the period 22 June to 27 July 1999, he was absent without leave (AWOL).

During the period 2 August 1999 to 18 March 2000, he was in AWOL and desertion status.

On 23 March 2000, the unit commander preferred charges against the applicant for being AWOL for the periods 22 June to 27 July 1999 and 2 August 1999 to 20 March 2000. He advised the applicant of his rights.

On 23 March 2000, after consulting with legal counsel, the applicant voluntarily submitted a request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, in lieu of trial by court-martial. He acknowledged that he was guilty; that he could receive a bad conduct or dishonorabIe discharge; that he understood the effects of’ receiving such a discharge, and that he had consulted with legal counsel. He also acknowledged that he had been fully advised of the nature of his rights and the facts, which must be established by competent evidence beyond a reasonable doubt to sustain a finding of guilty. In addition, he also indicated he had been advised of the possible defenses which appeared to be available at the time, and the maximum permissible punishment if he were found guilty.

His command recommended discharge under other than honorable conditions.

On 26 ApriI 2001, the appropriate separation authority approved his separation under other than honorable conditions discharge, issuance of an Undesirable Discharge Certificate and directed his reduction to pay grade E-1.

On 8 June 2001, the applicant was discharged, under other than honorable conditions in accordance with Army Regulation 635-200. His DD Form 214 (Certificate of Release or Discharge from Active Duty) indicates he had 2 years 1 month and 20 days of active service and 251 days of lost time, and that he was assigned RE Code of “4” and a SPD (Separation Program Designator) Code of KFS.

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 RA and the 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.

Code RE-4 applies to persons separated from their last period of service with a non-waivable disqualification, including those separated with a Departmental bar to reenlistment in effect, and who are ineligible for enlistment.

Army Regulation 635-5-1 states that SPD Codes are three-character alphabetic combinations, which identify reasons for, and types of separation from active duty. The primary purpose of SPD Codes is to provide statistical accounting of reason for separation. They are intended exclusively for the internal use of DOD and the military services to assist in the collection and analysis of separation date. It notes that “KFS” is the appropriate SPD Code for individuals separated in lieu of trial by court-martial.

A “cross-reference” chart, provided by officials from the separations branch at the U.S. Total Army Personnel Command, confirms that “RE-4” is the appropriate RE Code for individuals who receive an SPD Code of KFS.

Army Regulation 635-200 sets forth the basic authority for the 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 submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

Army Regulation 635-200 (Personnel Separations — Enlisted Personnel), paragraph 3-7 provides that an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be inappropriate.

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 applicant chose to request an administrative discharge rather than risk the consequence of a court-martial. Although he may now feel that he made the wrong choice, he should not be allowed to change his mind at this late date.

2. The applicant’s voluntary request for separation under Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations. There is no indication that the request was made under coercion or duress.

3. The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

4. There appears to be no basis for removal or waiver of that disqualification which established the basis for the reentry eligibility code.

5. In view of the circumstances in this case, the assigned reentry eligibility code was and still is appropriate.

6. 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

7. 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

_sac____ _jtm_______ _kwl____ DENY APPLICATION

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

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INDEX

CASE ID	AR2001062531
SUFFIX
RECON
DATE BOARDED	20020507
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	100
2.
3.
4.
5.
6.