RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  1 May 2008
	DOCKET NUMBER:  AR20070014072 


	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.  




Director



Analyst

      The following members, a quorum, were present:




Chairperson



Member



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 be changed from 4 to 3 so he will be eligible to reenter the Army.

2.  The applicant states, in effect, that he was misinformed and given the false impression that he could request separation in lieu of trial by court-martial and still be able to reenter the Army at a later date.

3.  The applicant provides a one page self-authored letter in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's DD Form 214 (Certificate of Release of Discharge from Active Duty) shows that he enlisted in the Regular Army at the age of 18, entered active duty on 30 August 2006, and was discharged on 27 June 2007.  His DD Form 214 also indicates, in pertinent part, that he was not awarded a military occupational specialty; did not receive any decorations, medals, badges, citations or campaign ribbons; and did not complete any military education.  The applicant's rank at the time of his separation was private (PVT)/pay grade E-1.  He did not complete his first full term of service.

2.  DA Form 4187 (Personnel Action), dated 16 October 2006, changed the applicant's duty status from present for duty to absent without leave (AWOL) effective 15 October 2006.

3.  DA Form 4187, dated 15 November 2006, changed the applicant's duty status from AWOL to dropped from the rolls effective 14 November 2006.

4.  DD Form 553 (Deserter/Absentee wanted by the Armed Forces) was prepared and distributed to inform military and civilian authorities that the applicant had been dropped from the active duty rolls of the Army for being AWOL during the period 15 October 2006 through 14 November 2006.

5.  DD Form 616 (Report of Return of Absentee), dated 19 February 2007, was prepared and distributed to inform military and civilian authorities that the applicant had been apprehended by civil authorities and returned to military control.  The form also instructed them to terminate apprehension efforts.


6.  DD Form 458 (Charge Sheet), dated 14 October 2006, shows the applicant was charged with AWOL, for violation of Article 86 of the Uniform Code of Military Justice (UCMJ), for departing AWOL on 13 October 2006 with the intent to remain permanently away from his unit.

7.  The applicant's complete discharge packet is not in his service personnel records.  However, his records do contain sufficient evidence to show that he voluntarily requested discharge for the good of the service in lieu of trial by court-martial, under the provisions of chapter 10 (Discharge in Lieu of Trial by Court-Martial) of Army Regulation 635-200 (Active Duty Enlisted Separations).  In such a request, it was a requirement that an applicant for discharge to state that he understood that he could request discharge for the good of the Service because charges had been preferred against him under the Uniform Code of Military Justice (UCMJ) which authorized the imposition of a bad conduct or dishonorable discharge.  It was also a requirement that an applicant for discharge acknowledged that he was making his request for discharge of his own free will and was not subjected to any coercion whatsoever by any person.  The applicant for such a discharge was also required to understand that by submitting his request for discharge, he acknowledged that he was guilty of the charge against him or a lesser included offense therein contained which might also authorize the imposition of a bad conduct or dishonorable discharge.  Finally, the applicant for a discharge under chapter 10 of Army Regulation 635-200 must state that under no circumstances, does he desire further rehabilitation, for he has no desire to perform further military service.

8.  DD Form 2648 (Preseparation Counseling Checklist for Active Component Service Members), dated 14 May 2007, shows the applicant was afforded an opportunity to receive transition counseling for services and benefits, but he opted to decline this opportunity.

9.  Item 24 (Character of Service) of the DD Form 214 issued to the applicant upon separation shows he was discharged under other than honorable conditions.  Item 25 (Separation Authority) indicates he was separated under the provisions of chapter 10 of Army Regulation 635-200.  The applicant's DD Form 214 also shows that based on the authority and reason for his discharge, he was assigned a Separation Program Designator (SPD) code of KFS in Item 26 (Separation Code) and an RE code of 4 in Item 27 (Reentry Code).


10.  The applicant provides a self-authored letter in which he states, in effect, that he went AWOL in order to attend to his mother’s personal affairs while she was in prison and to provide support to his girlfriend whom he believed was about to give birth to twins.  He also states that, prior to going AWOL, he discussed his intentions with his First Sergeant who was supportive but advised him that he would receive punishment for leaving.  The applicant further states that he maintained contact with his First Sergeant during his absence and turned himself in at the Fort Sill, Oklahoma Personnel Control Facility (PCF) as soon as he could.  The applicant stated that the staff at the PCF told him that he could request separation under the provisions of chapter 10 of Army Regulation 635-200 and reenlist upon receipt of his DD Form 214.  He concludes that he regrets his mistake and is hoping that he will be afforded a second chance to be able to serve his country.

11.  Army Regulation 635-5-1 (SPD 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.  It states, in pertinent part, that the SPD code KFS is the appropriate code to assign to Soldiers separated under the provisions of chapter 10 of Army Regulation 635-200 in lieu of trial by Court-Martial.  The SPD/RE Code Cross Reference Table indicates that RE code 4 is the proper code to assign members separated with SPD code KFS.

12.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the United States Army Reserve (USAR).  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.  RE code 4 applies to persons separated from their last period of service who have a nonwaivable disqualification and are ineligible for reentry.

13.  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.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his RE code should be changed so he will be eligible to reenter the Army was carefully considered and found to lack merit.

2.  Although the applicant also contends that he was misinformed and given the false impression that he could request separation in lieu of trial by court-martial and still reenter the Army at a later date, he has not provided any evidence to support this contention.

3.  Evidence of record shows that the applicant went AWOL with the intent to remain absent until he was apprehended by civil authorities and returned to military control after 128 days of absence.

4.  The record also shows that when charged with AWOL, for violation of Article 86 of the Uniform Code of Military Justice (UCMJ), the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial, under the provisions of chapter 10 of Army Regulation 635-200.

5.  The evidence of record shows the applicant was discharged under the provisions of Chapter 10, AR 635-200, for the good of the service 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 Uniform Code of Military Justice (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.  

6.  In the absence of information to the contrary, it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  It also noted that the characterization of service for this type of discharge is normally under other than honorable conditions and that the applicant was aware of that prior to requesting discharge.

7.  Evidence shows the applicant was assigned the appropriate RE code of 4 at the time of his discharge.  Army Regulation 601-210 provides that RE code 4 applies to persons separated from their last period of service who have a nonwaivable disqualification and are ineligible for reentry.

8.  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.  Therefore, he is not entitled to an upgraded RE code.

9.  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 and there is no basis for granting his request.

BOARD VOTE:

__x______  __x______  __x______  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  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.





      __________x____________
                CHAIRPERSON
ABCMR Record of Proceedings (cont)                                         AR20070014072



2


DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET, 2ND FLOOR
ARLINGTON, VA  22202-4508