RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:      7 December 2006
      DOCKET NUMBER:  AR20060006050


      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. Stephanie Thompkins           |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Richard T. Dunbar             |     |Chairperson          |
|     |Mr. Dale E. DeBruler              |     |Member               |
|     |Mr. Larry W. Racster              |     |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, in effect, that the reenlistment (RE) code and
the reason for his discharge be changed to a more favorable reenlistment
code and reason.

2.  The applicant states, in effect, that he served honorably for 3 years
and had one act of indiscretion.  He also states that he places no blame on
anyone but himself.  He only wishes to serve his country further.  His
record reflects his meritorious service, including one year in Iraq.  He
was never offered counseling for marital problems or for drug use after his
positive urinalysis test.  He believes he could have been rehabilitated and
served as he had previously served.

3.  The applicant provided no additional documents in support of his
request.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he enlisted in the United States
Army Reserve, Delayed Enlistment Program, for 8 years, on 27 December 2001.
 He enlisted in the Regular Army for 3 years, in pay grade E-1, on 24
January 2002.
He was advanced to pay grade E-4 on 1 September 2003.

2.  On 24 January 2004, the applicant was discharged for the purpose of
immediately reenlisting and reenlisted on 25 January 2004.

3.  He was advanced to pay grade E-5 (Sergeant) on 1 December 2004.

4.  On 10 January 2005, a DD Form 458, Charge Sheet, was prepared by the
Commander, Forward Support Company, 64th Brigade Support Battalion,
3rd Brigade Combat Team, Fort Carson, Colorado.  In this charge sheet, the
applicant was being charged with wrongfully using cocaine between on or
about 10 December 2004 and 14 December 2004.

5.  The Office of the Staff Judge Advocate, Fort Carson, reviewed the
charge sheet, on 10 January 2005.

6.  On 24 January 2005, the applicant entered into a pretrial agreement.
In this agreement, he entered a plea of guilty to the charge and its
specification.  He stated that the offer to plead guilty originated with
him.  No person or persons had made any attempt to force or coerce him into
making the offer or to plead guilty.  In this agreement, the applicant
agreed to waive his right to have a court-martial composed of members, and
agreed to have a military judge alone determine an appropriate sentence.
He also agreed to waive his right to call any witnesses outside of the
Colorado Springs area.  He stated he understood he could withdraw his pleas
at any time before his plea was accepted.  He also understood that after
the acceptance of his pleas, but before the sentence was announced, the
military judge, could, as a matter of discretion, permit withdrawal of his
pleas.

7.  On 25 January 2005, the applicant entered a Stipulation of Fact.  In
this stipulation, the applicant stated, "On 14 December 2004, the Accused
was administered a urinalysis which tested positive for cocaine.  The
Accused ingested cocaine between on or about 10 December 2004 and 14
December 2004.  The Accused knew at the time of ingestion that the
substance he was ingesting was cocaine based upon the fact that he obtained
the cocaine in this case by specifically asking for cocaine from another
person and subsequently received the cocaine from the other person in
response to that specific request. The Accused knew that his use of cocaine
was wrongful and against the law.  The Accused knew that ingestion of the
cocaine would result in a level of intoxication or 'high' he hoped would
occur by using that drug.  The Accused knew that use of the cocaine during
the above referenced period of time was without legal justification or
authorization.  The Accused knew use of the cocaine was not incident to
legitimate law enforcement activities; the Accused was not an authorized
person acting in the performance of medical duties.  The Accused had full
knowledge that the contraband he was ingesting was cocaine."

8.  On 4 February 2005, the applicant was notified he was being charged
with wrongfully using cocaine between the period of about 10 and 14
December 2004.

9.  On 16 February 2005, the applicant voluntarily submitted a request for
discharge in lieu of trial by court-martial under the provisions of Army
Regulation (AR) 635-200, Chapter 10.  In his request the applicant stated
he understood he could request discharge in lieu of trial by court-martial
because charges had been filed against him under the Uniform Code of
Military Justice (UCMJ), which could authorize the imposition of a bad
conduct or dishonorable discharge.

10.  In his request, the applicant stated that he was making his request of
his own free will and had not been subjected to coercion whatsoever by any
person. The applicant stated he had been advised of the implications that
were attached to his request and that by submitting his request, he
acknowledged that he was guilty of the charge against him or of a lesser or
included offense that allowed the imposition of a bad conduct or a
dishonorable discharge.  Moreover, he stated that he did not desire further
rehabilitation or to continue service in the military.

11.  Prior to completing his request for discharge, the applicant consulted
with his appointed attorney.  His counsel fully advised him of the nature
of his rights under the UCMJ, the elements of the offense with which he was
charged; any lesser included offenses thereto; the facts which must be
established by competent evidence beyond a reasonable doubt to sustain a
finding of guilty, the possible defenses which appear to be available at
the time; and the maximum permissible punishment if found guilty.  Although
he was furnished legal advice, he admitted that the decision to submit a
request for discharge in lieu of trial by court-martial was his own.

12.  The applicant stated that he understood that if his request were
accepted, he could be discharged under conditions other than honorable.  He
was advised and understood the effects of an under other than honorable
discharge (including but not limited to reduction to the lowest enlisted
grade (E-1) by operation of law) and that as a result of the issuance of
such a discharge he would be deprived of many or all Army benefits that he
might be eligible for, that he might be ineligible for many or all benefits
administered by the Veterans Administration [now the Department of Veterans
Affairs], and that he might be deprived of his rights and benefits as a
veteran under both Federal and state law.  He also understood that he could
expect to encounter substantial prejudice in civilian life because of an
under other than honorable conditions discharge.

13.  The applicant was advised that he could submit a statement in his own
behalf, which would accompany his request for discharge.  The applicant
declined to submit a statement in his own behalf.

14.  On 3 February 2005 the Staff Judge Advocate recommended to the General
Court-Martial Convening Authority that the charged offense be tried by a
Special Court Martial empowered to adjudge a bad conduct discharge and that
the case be referred to trial.  The Commander, Headquarters, 7th Infantry
Division and Fort Carson, approved all recommendations of the Staff Judge
Advocate.

15.  On 16 February 2005, the applicant's chain of command recommended
approval of the applicant's request for discharge in lieu of trial by court
martial and recommended he be issued an under other than honorable
conditions discharge certificate.

16.  On 17 February 2005, the Acting Commander, Headquarters, 7th Infantry
Division and Fort Carson, approved the applicant's request for discharge in
lieu of trial by court martial.  He directed the applicant's service be
characterized as under other than honorable conditions and directed that
the applicant not be transferred to the Individual Ready Reserve (IRR).

17.  The applicant was discharged under the provisions of AR 635-200,
Chapter 10, in lieu of trial by court-martial, with his service
characterized as "Under Other than Honorable Conditions," in the rank and
pay grade of Private, E-1, on 28 February 2005.  The separation code, "KFS"
was entered in Item 26 (Separation Code), of the applicant's DD Form 214,
Certificate of Release or Discharge from Active Duty, and "4" was entered
in Item 27 (Reentry Code), of his DD Form 214.

18.  On the applicant's discharge date, he held the primary military
occupational specialty 63H, Track Vehicle Repairer.

19.  On 23 May 2005, the applicant applied to the Army Discharge Review
Board (ADRB) for an upgrade of his discharge within its 15-year statute of
limitations. The applicant also applied simultaneously for a change of his
reenlistment eligibility code.  In his request to the ADRB, the applicant
stated his record was immaculate prior to this one instance and was
promoted ahead of his peers.  He stated he loved the Army and what it stood
for; he made one mistake, and hoped it did not hamper his ability to serve
his country in the near future.

20.  On 21 March 2006, after carefully examining the applicant's record of
service during the period of his enlistment, the ADRB determined that the
characterization of service was too harsh based on the overall length and
quality of his service, to include his combat time and awards, and voted to
change the character of his service, in effect, to upgrade his discharge to
Under Honorable Conditions (General).  This action entailed a restoration
of the pay grade E-5 (sergeant).  The board voted not to change the reason
for the applicant's discharge.

21.  The applicant was notified of the ADRB's determination that relief was
warranted and that his discharge had been upgraded from Under Other than
Honorable Conditions to Under Honorable Condition (General).  Notification
was made on 10 April 2006.

22.  AR 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, at any time
after the charges have been preferred, 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, but the
separation authority may direct a general discharge or an honorable
discharge if such is merited by the Soldier's overall record and if the
Soldier's record is so meritorious that any other characterization clearly
would be improper.

23.  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 (emphasis added).  AR 601-210
covers eligibility criteria, policies, and procedures for enlistment and
processing into the 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.  An RE-4 code applies to persons separated from
their last period of service with a non-waivable disqualification. This
includes anyone discharged from the Army for the good of the service – in
lieu of trial by court-martial.

24.  AR 635-5-1 (SPD (Separation Program Designator) Codes) prescribes the
specific authorities (regulatory, statutory, or other directives), the
reasons for the separation of members from active military service, and the
SPD codes to be used for these stated reasons.  The regulation, in effect
at the time, shows that the SPD code “KFS” as shown on the applicant’s DD
Form 214 specifies the narrative reason for separation as "In Lieu of Trial
by Court-martial."  The authority for separation under this separation
program designator is “AR 635-200, Chapter 14-12c(2)”.  Additionally,
Table 2-3 (SPD/RE Code Cross Reference Table), AR 635-5 (Separation
Documents) establishes RE code "4" as the proper reentry code to assign to
soldiers separated for this reason.

25.  RE–4 applies to persons not qualified for continued service by virtue
of being separated from the service with non-waivable disqualifications
such as persons discharged in lieu of trial by court-martial.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows the applicant was charged with wrongfully using
cocaine. Court martial charges were brought against the applicant.  A
recommendation was made by the command staff judge advocate that the
applicant be tried by a special court-martial empowered to adjudge a bad
conduct discharge.

2.  Initially, the applicant entered into a pretrial agreement.  In this
agreement, he entered a plea of guilty to the charge and its specification
and on a later date, he voluntarily submitted a request for discharge for
the good of the service - in lieu of trial by court-martial.

3.  On his discharge date, the applicant was issued a DD Form 214 to
summarize his service.  The DD Form 214 shows he was discharged and his
service was characterized as under other than honorable conditions.  The
narrative reason for the applicant's separation was shown as, "In Lieu of
Trial by Court-Martial."  He was assigned a reentry code of "4.”
4.  The applicant applied to the ADRB for an upgrade of his discharge and a
change to his Reentry Code.  After careful consideration of the applicant's
record, the ADRB voted to change the character of his service; however, it
voted not to change the applicant's reentry code.  The ADRB upgraded the
applicant's discharge to Under Honorable Conditions (General) and restored
the applicant's pay grade to the one he held before separation, sergeant,
pay grade E-5.

5.  In his application to this Board, the applicant introduced a new
contention that he was never offered counseling for marital problems or for
drug use after his positive urinalysis test.  There is no evidence the
applicant, who was serving in the rank and pay grade, sergeant/E-5, was
experiencing marital difficulties.  Assuming that he was, a noncommissioned
officer of his pay grade should have possessed the skills to seek out help
through his chain of command, office of the chaplain, or other social
services organizations in the surrounding local community.  Resorting to
the use of illicit/illegal drugs was not and is not the answer to marital
difficulties.

6.  The evidence shows the applicant was discharged under the provisions of
AR 635-200, Chapter 10, in lieu of trial by court-martial.  In connection
with such a discharge, the applicant was charged with the commission of an
offense punishable under the UCMJ with a punitive discharge.  Procedurally,
the applicant was required to consult with defense counsel, and to
voluntarily, and in writing, request separation from the Army in lieu of
trial by court-martial.  In doing so, the applicant admitted guilt to the
stipulated offenses under the UCMJ.

7.  The evidence shows that all requirements of law and regulation were met
and the rights of the applicant were fully protected throughout the
separation process. The characterization of service for this type of
discharge is normally under other than honorable conditions and the
evidence shows the applicant was aware of that prior to requesting
discharge.  It is believed that the reason for discharge and the
characterization of service were both proper and equitable.

8.  The evidence more than abundantly shows that the reason for the
applicant's discharge was based on his request for discharge to avoid trial
by court-martial. The evidence also shows that the reentry code applied to
his DD Form 214 corresponds to the reason for his separation and therefore,
it is proper and there is no basis upon which to change the reentry code to
a more favorable code.

9.  In view of the foregoing, there is no basis for changing the narrative
reason for his discharge or for changing his reentry code to a more
favorable reason and RE code.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__LWR__  __D_____  __RTD__  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.




                                  _____Richard T. Dunbar_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060006050                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20061207                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |A70                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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