RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	   27 March 2007
	DOCKET NUMBER:  AR20060012176 


	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.  


	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, who was discharged under the provisions of Army Regulation 635-200 (Enlisted Personnel), Chapter 10 (Discharge in Lieu of Trial by Court- Martial), requests that his reentry (RE) code shown in Item 27 (Reentry Code) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed from a RE code of “4” to a RE code of “1.” 

2.  The applicant essentially states that he feels that he was never convicted of any crime or wrongdoing while he was in the Army.  He also states, that he wants to reenlist and to serve his country honorably.

3.  The applicant provides his DD Form 214 in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 10 September 2004, the date of his discharge from the Regular Army.  The application submitted in this case is dated 17 August 2006.

2.  The applicant’s military records show that he enlisted in the Regular Army on 18 August 2000.  He completed basic and advanced individual training and was awarded military occupational specialty 88H (Cargo Specialist).  

3.  On 17 August 2004, the applicant voluntarily requested discharge in lieu of trial by court-martial under the provisions of Army Regulation 635-200, Chapter 10.  He understood that he could request discharge in lieu of trial by court-martial because charges were preferred against him under the Uniform Code of Military Justice for rape, indecent acts, and use of a controlled substance, which authorized the imposition of a bad conduct or dishonorable discharge.  On 
2 September 2004, the proper approval authority approved the applicant’s discharge under the provisions of Army Regulation 635-200, Chapter 10, and essentially directed that he receive an Under Other Than Honorable Conditions Discharge Certificate. 

4.  On 10 September 2004, the applicant was discharged under the provisions of Army Regulation 635-200, Chapter 10, and issued an Other Than Honorable Discharge Certificate, which was subsequently upgraded to a General Discharge Certificate by the Army Discharge Review Board.  Item 28 (Narrative Reason for Separation) of his DD Form 214 has an entry of “In Lieu of Trial by Court-Martial”. His DD Form 214 also shows that he was assigned a Separation Program Designator (SPD) code of “KFS,” and an RE code of “4.”
5.  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 at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

6.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies and procedures for enlistment and processing into the Regular Army and the United States 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 Regular Army RE codes.  RE codes 1 and 2 permit immediate reenlistment if all other criteria are met.  An RE code of 3 applies to persons not qualified for continued Army service, but the disqualification is waivable.  An RE code of 4 indicates separation from the last period of service with a disqualification which cannot be waived and ineligibility for reenlistment.

7.  Army Regulation 635-5-1 (Separation Program Designator Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. Additionally, Table 2-3 (SPD/RE Code Cross Reference Table), AR 635-5-1 (Separation Documents) establishes RE Codes to be assigned for each SPD.  

8.  An SPD code of "KFS" applies to persons who are discharge in lieu of trial by court-martial under the provisions of Chapter 10, Army Regulation 635-200.  The SPD/RE Code Cross Reference Table shows that an RE code of 4 is the applicable RE code assigned for individuals separated in lieu of trial by court-martial.  An RE code of 4 indicates that the applicant was separated from his last period of service with a disqualification which cannot be waived and is ineligible for reenlistment.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his RE code shown in Item 27 of his DD Form 214 should be changed from a RE code of “4” to a RE code of “1.” 

2.  It is clear that the applicant was charged with the commission of multiple offenses punishable under the UCMJ with a punitive discharge.  It is also clear that he voluntarily requested discharge from the Army in lieu of trial by court-martial.  The applicant did not provide any evidence which shows that any requirements of law and regulation were not met, or that his rights were not fully protected throughout the separation process.

3.  The applicant's RE code is based on his reason for discharge and cannot be changed unless the applicant's narrative reason for discharge is changed.  His narrative reason for discharge was based on his voluntary request for discharge in lieu of trial by court-martial, and the Board could find no basis upon which to change this reason.  

4.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.  In view of the foregoing, there is no basis for granting relief to the applicant in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__KW___  __CD ___  __EF ___  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.




_____Kenneth Wright_______
          CHAIRPERSON

INDEX

CASE ID
AR20060012176
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070327
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
AR 15-185
ISSUES         1.
100.0300.0000
2.

3.

4.

5.

6.