RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  10 January 2008
	DOCKET NUMBER:  AR20070012376 


	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. Mohammed R. Elhaj

Analyst


The following members, a quorum, were present:


Mr. William D. Powers

Chairperson

Mr. Jerome L. Pionk

Member

Mr. Donald W. Steenfott

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 correction of his records by changing his Reentry Code (RE Code) so he can rejoin the Army.

2.  The applicant states, in effect, that during his military service, he went home for a holiday break and found his spouse was cheating on him with a person who was also molesting his daughter.  That was the reason he departed in an absent without leave (AWOL) status.  

3.  The applicant provided a copy of the following additional documentary evidence in support of his application:

	a.  Headquarters, U.S. Army Garrison, Fort Sill, Oklahoma, Orders      249-17, dated 6 September 2006, assignment to the Personnel Control Facility;

	b.  DA Form 4187 (Personnel Action), dated 6 September 2006, return to military control duty status;

	c.  self-authored letter, dated 8 April 2007;

	d.  character reference letter, dated 8 April 2007; and

	e.  character reference letter, dated 5 July 2007.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show that he enlisted in the Oklahoma Army National Guard (OKARNG) on 23 February 2002.  He was ordered to initial active duty for training (IADT) on 27 August 2002 to attend basic combat and advanced individual training in military occupational specialty 11B (Infantryman).

2.  While undergoing basic combat training at Fort Knox, Kentucky, the applicant departed on ordinary leave for the holiday exodus on 20 December 2002.  However, he did not return to his basic training unit upon conclusion of his leave and was reported absent without leave on 3 January 2003.  

3.  On 31 January 2003, Court-Martial charges were preferred against the applicant for one specification of being AWOL during the period on or about 3 January 2003 until an undetermined date.

4.  On 3 February 2003, the applicant was dropped from the Rolls (DFR) of the Army.

5.  The applicant’s records further show that he was apprehended by civil authorities in Moses Lake, Washington, on 22 August 2006.  He was returned to military control on 22 August 2006.  Subsequent to his return to military control, he was assigned to the Personnel Control Facility, Fort Sill, Oklahoma. 

6.  On 26 August 2006, Court-Martial charges were preferred against the applicant for one specification of being AWOL during the period on or about 3 January 2003 until on or about 22 August 2006.

7.  On 31 August 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 a discharge under other than honorable conditions if his request was approved, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by Court-Martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations).

8.  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 discharge or a dishonorable discharge.  He further acknowledged he understood that if the 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.  The applicant elected not to submit a statement on his own behalf and waived his right to a physical evaluation prior to separation.

9.  On 30 August 2006, the applicant was interviewed by the unit first sergeant.  During the interview the applicant stated that he could not adapt to military life and did not request to remain on active duty.   

10.  On 3 October 2006, the immediate acting commander recommended approval of the applicant’s request.  In his comment, the immediate acting commander stated that the applicant had become disillusioned with the military and his retention was not in the best interest of the Army.  The acting immediate commander further recommended an under other than honorable conditions discharge.
11.  On 24 October 2006, the Chief, Criminal Law Division, U.S. Army Garrison, Fort Sill, Oklahoma, reviewed the applicant’s request for discharge in lieu trial by Court-Martial.  The Chief, Criminal Law Division, stated that there were no legal objections to further processing the applicant’s request for discharge in accordance with the unit commander’s recommendation. 

12.  On 31 October 2006, the intermediate commander concurred with the immediate commander’s comments and recommended the applicant be discharged with an uncharacterized discharge.

13.  On 2 November 2006, the separation authority approved the applicant's request for discharge and directed that he receive an Under Other Than Honorable Conditions Discharge Certificate.  On 11 December 2006, the applicant was discharged accordingly.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued confirms he completed a total of 5 months and 17 days of creditable active military service with 1,327 days of lost time due to AWOL.

14.  In a self-authored statement, dated 8 April 2007, the applicant stated that during basic combat training, he had separation anxieties from being away from his family.  When he went home on leave during the holiday exodus, he found out his spouse was having an affair with another person who was also molesting his daughter.  This caused him not to return to training.  The person who molested his daughter was prosecuted and jailed.  In the meantime, the applicant had straightened up his life and regretted going AWOL.  He concludes that he would like to have an opportunity to serve his country again and make everyone proud.

15.  In character reference letters dated 8 April 2007 and 5 July 2007, the authors comment on the applicant’s sense of responsibility, maturity, and love of country.  

16.  There is no indication in the applicant's records that he applied to the Army Discharge Review Board for an upgrade of his discharge.

17.  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.
18.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

19.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

20.  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 (Regular Army and Army Reserve Enlistment Program), covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (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 Regular Army RE codes.

	a.  RE–1 applies to persons completing their term of service who are considered qualified to reenter the Army.

	b.  RE-4 applies to individuals separated from last period of service with a nonwaiverable disqualification.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his RE Code should be changed to a more favorable RE-code so that he can rejoin the Army.

2.  The applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  After consulting with legal counsel, he voluntarily, and in writing, requested separation from the Army under the provisions of chapter 10 of Army Regulation 635-200 in lieu of trial by a Court-
Martial.  By doing so, the applicant admitted guilt to the offense of being AWOL.  
All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

3.  The evidence confirms that the applicant’s RE code was assigned based on the fact that he was separated under the provisions of chapter 10, Army Regulation 635-200.  He received the appropriate RE code associated with his discharge.

4.  There is no evidence in the applicant’s records that he had sought help from his chain of command or outside agencies regarding any domestic issues or challenges. 

5.  The Army Board for Correction of Military Records (ABCMR) does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  The RE-4 assigned to the applicant at the time of his discharge is correct.

6.  There is no evidence in the available records nor did the applicant provide documentation to substantiate an upgrade of his discharge.  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 evidence that would satisfy that requirement.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__wdp___  __jlp___  __dws___  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.



							William D. Powers
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20070012376
SUFFIX

RECON

DATE BOARDED
20080110
TYPE OF DISCHARGE
(UOTHC,)
DATE OF DISCHARGE
20061211
DISCHARGE AUTHORITY
AR 635-200, Chap 10
DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.

3.

4.

5.

6.