RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  1 May 2008
	DOCKET NUMBER:  AR20070016836 


	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, in effect, that his discharge be upgraded and that he be allowed to reenter the Army.

2.  The applicant states, in effect, that his actions as a young man were not a true reflection of the type of person he is.  The applicant, in effect, continues that his age and immaturity were the cause of the indiscipline which resulted in his discharge.  The applicant concludes that he would like to reenter the Army so he may redeem himself and fulfill his goal of becoming an upstanding member of the United States Armed Forces.

3.  The applicant provides copies of his Learner’s Instruction Permit [Driver's License], Social Security Card, Birth Registration, and a letter from the Army Discharge Review Board in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Army at the age of 18 1/2, on
21 January 1998.  He completed basic combat and advanced individual training (AIT).  Upon completion of AIT, he was awarded the military occupational specialty 11B (Infantryman).  The highest rank he attained while serving on active duty was specialist/pay grade E-4.

2.  DA Form 4187 (Personnel Action), dated 23 November 1999, changed the applicant's duty status from present for duty to absent without leave (AWOL) effective 22 November 1999.

3.  DA Form 4187, dated 22 December 1999, changed the applicant's duty status from AWOL to dropped from the rolls effective 22 December 1999.

4.  DD Form 553 (Deserter/Absentee Wanted by the Armed Forces), dated 22 December 1999, 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 22 November 1999 through 22 December 1999.

5.  DD Form 616 (Report of Return of Absentee), dated 30 October 2003, was prepared and distributed to inform military and civilian authorities that the applicant had been returned to military control and instructed them to terminate apprehension efforts.

6.  DA Form 4187, dated 5 November 2003, shows the applicant was apprehended by civil authorities for a traffic violation, fined, and then turned over to military authorities on 30 October 2003.

7.  DD Form 458 (Charge Sheet), dated 19 July 2004, shows the applicant was charged with Desertion for departing AWOL on 22 November 1999 with the intent to remain permanently away from his unit until he was apprehended on 30 October 2003, in violation of Article 85 of the Uniform Code of Military Justice (UCMJ).

8.  On 30 August 2004, the applicant offered to plead guilty to violation of Article 86 of the UCMJ, Absence Without Leave-Terminated by Apprehension, a lesser included offense, in lieu of pleading guilty to violation of Article 85.  The applicant also agreed to unconditionally waive his right to an administrative separation board under the provisions of Army Regulation 635-200 (Enlisted Separations), including a board authorized to recommend a characterization of service of under other than honorable conditions.  The applicant made these offers provided the Court-Martial Convening Authority referred the charge and its specification to a trial by Summary Court-Martial.  The offer to plead guilty under the aforementioned conditions was accepted.

9.  DA Form 5111-R (Summary Court-Martial Rights Notification/Waiver Statement), dated 23 September 2004, shows the applicant acknowledged understanding his rights and voluntarily consented to trial by Summary Court-Martial.

10.  DA Form 4430-R (Department of the Army Report of Result of Trial), dated 29 September 2004, shows the applicant was found guilty of violation of Article 86 of the UCMJ as a result of trial by Summary Court-Martial.  The following sentence was adjudged:  confinement for 29 days; reduction to the pay grade of 
E-1, suspended to be automatically remitted if not vacated before March 2005; and forfeiture of $1,092.00 pay, suspended to be automatically remitted if not vacated before March 2005.

11.  On 25 October 2004, the unit commander advised the applicant that he was recommending his discharge under the provisions of Chapter 14-12c of Army Regulation 635-200 (Personnel Separations) for commission of a serious offense.  The commander also informed the applicant that he was recommending that his service be characterized as under other than honorable conditions.  The commander continued by advising the applicant of his rights to consult with legal counsel, consideration of his case by a board of officers, and personal appearance before a board of officers.
12.  The applicant consulted with legal counsel and after being advised of the basis for the contemplated separation, its effects and the rights available to him, he waived his right to consideration of his case by a board of officers and personal appearance before a board of officers.  The applicant acknowledged his understanding that if he was issued a general discharge under honorable conditions, or anything less, he may expect to encounter substantial prejudice in civilian life.

13.  The separation authority directed the applicant’s separation under the provisions of paragraph 14-12c of Army Regulation 635-200 and that his service be characterized as under other than honorable conditions.  He further directed that the applicant not be transferred into the Individual Ready Reserve (IRR) based on his opinion that the applicant had no potential for useful service under conditions of full mobilization.  On 29 October 2004, the applicant was discharged accordingly.

14.  Item 25 (Separation Authority) of the DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to the applicant upon separation indicates he was separated under the provisions of paragraph 14-12c of Army Regulation 635-200.  It also shows that based on the authority and reason for his discharge, he was assigned a Separation Program Designator (SPD) code of JKF in Item 26 (Separation Code) and a Reentry Eligibility (RE) code of 3 in Item 27 (Reentry Code).

15.  On 5 July 2006, the applicant submitted a DD Form 293 (Application for Review of Discharge or Dismissal from the Armed Forces of the United States) requesting an upgrade of his discharge.

16.  On 7 December 2006, the Army Discharge Review Board informed the applicant that his discharge had been reviewed as required by Public Law 
95-126.  As a result of this review, the board determined that he had been properly discharged and his request for a change in the type and nature of his discharge was denied.

17.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of serious offense, conviction by civil authorities, desertion, or absences without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  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.  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 JKF is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 14-12c.  The SPD/RE Code Cross Reference Table indicates that RE code 3 is the proper code to assign members separated with SPD code JKF.

21.  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 3 applies to persons who are not considered fully qualified for reentry or continuous service at the time of separation, but the disqualification is waivable and the individual is eligible for reentry if a waiver is granted.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that his discharge should be upgraded based on the fact that he was young and immature at the time of his military service and that he should be readmitted into the Army were carefully considered.



2.  Records show that the applicant was 19 years of age at the time of his offense.  There is no evidence that indicates that the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

3.  Evidence of record shows that the applicant went AWOL with the intent to remain absent until he was apprehended by civilian authorities and returned to military control after 424 days of absence.

4.  The record also shows that when charged with Desertion, the applicant plea bargained and pled guilty to the lesser charge of Absence Without Leave-Terminated by Apprehension with the understanding that he would be the subject of a trial by Court-Martial and possibly discharged from the Army under other than honorable conditions.

5.  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 discharge.

6.  Evidence of record shows the applicant was assigned the appropriate RE code of 3 at the time of his discharge.  Army Regulation 601-210 provides that RE code 3 applies to persons who are not considered fully qualified for reentry or continuous service at the time of separation, but the disqualification is waivable and the individual is eligible for reentry if a waiver is granted.  Although, the applicant is ineligible unless a waiver is granted, he is eligible to be considered for reentry into the Army with his current discharge.  The applicant is advised to seek further assistance in this matter through an Army recruiter who is required to process the waiver application, if otherwise qualified.

7.  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:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x___  __x____  ____x____  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)                                         AR20070016836



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