RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  12 June 2007
	DOCKET NUMBER:  AR20060017370 


	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.  


Ms. Catherine C. Mitrano

Director

Mr. Dean L. Turnbull

Analyst


The following members, a quorum, were present:


Ms. LaVerne M. Douglas

Chairperson

Mr. Edward E. Montgomery

Member

Ms. Rea M. Nuppenau

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 eligibility (RE) code RE-4 be upgraded to RE-3.  

2.  The applicant states, in effect, that he would like to have his RE-4 upgraded so that he may become eligible for reenlistment and atone his past mistakes.  He states he realizes what he did was wrong and that he needed to be punished for showing disrespect towards his country and the men and women of the armed forces.  He is asking for a second chance so he can make a better life for his wife and child that is on the way.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  The applicant entered active duty on 29 December 2005.  The applicant's records do not indicate that he completed basic combat training or advanced individual training.

2.  On 26 March 2006, the applicant went absent without leave (AWOL) and remained AWOL until 2 April 2006.

3.  The applicant was charged with three specifications for not going to his appointed place of duty without authority, one specification for being disrespectful in language towards a superior noncommissioned officer by yelling at him, one specification for wrongfully using provoking words and gestures, to wit: "removing his Army Combat Uniform top, raising his arms, and stating 'you wanna fight me' towards his superior noncommissioned officer."  Also, one specification for assaulting a Soldier by swinging his arms around and unlawfully striking another Soldier on his chest with his hands.

4.  On 4 May 2006, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial.

5.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offense, that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and state law.  He also acknowledged that he understood that he may expect to encounter substantial prejudice in civilian life by reason of an Under Other Than Honorable Conditions Discharge.  He further understand that there is no automatic upgrading or review by any Government agency of a less than honorable discharge and that he must apply to the Army Discharge Review Board or the Army Board of Correction of Military Records if he wish review of his discharge.  He realized that the act of consideration by either board does not imply that his discharge will be upgraded.

6.  On 12 May 2006, the applicant's commander forwarded his recommendation for separation of the applicant to the separation approving authority.

7.  On 18 May 2006, the approving authority approved the applicant's request and directed the applicant be discharged in lieu of trail by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations), 
Chapter 10, and his service be characterized as Under Other Than Honorable conditions.

8.  On 23 May 2006, the applicant was discharged from active duty in lieu of trial by court martial, for the good of the service, in accordance with Army Regulation 635-200, Chapter 10.  He was assigned a separation program designator code (SPD) code of KFS and assigned an RE code of RE-4.  According to his DD Form 214, he had completed a total of 4 months and 19 days of active service and accrued 6 days of time lost.

9.  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 US Army Reserve.  Chapter 3 of this 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.

10.  Table 3-1 (U.S. Army reentry eligibility codes), of Army Regulation  
601-210 states that RE-4 applies to persons separated from last period of service with a non-waivable disqualification.

11.  AR 635-5-1 (Separation Program Designated Codes), Table 2-3, states that the SPD code KFS denotes voluntary discharge, in lieu of court-marital.

12.  The Army Human Resources Command publishes a cross-reference of SPD and RE codes.  This cross-reference shows that an SPD code of KFS is assigned an RE code of RE-4.

13.  Army Regulation 635-200 Personnel Separations 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 trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that his RE code RE-4 be upgraded to RE-3, because he would like to reenter the military.

2.  There is no evidence or indication that there was an error or injustice, which caused the applicant to be discharged in lieu of trial by court-martial, nor has the applicant contended that there was an error or injustice in his discharge.

3.  Since the applicant was properly discharged, there is no reason to change a correctly assigned RE code.

4.  The applicant's statement that he realizes what he did was wrong and that he needed to be punished for showing disrespect towards his country and the men and women of the armed forces and, he needs a second chance to a better life, is noted.  However, his statement is not sufficient to mitigate his RE-4.  Therefore, he is not entitled to correction of his records to upgrade his RE-4 to RE-3.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___lmd__  ___rmn__  ___eem__  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.




__________LaVerne M. Douglas_____
          CHAIRPERSON




INDEX

CASE ID
AR20060017370
SUFFIX

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

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.