RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  03 April 2008
	DOCKET NUMBER:  AR20070018683 


	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.  


o

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, an upgrade of his reentry (RE) code from RE-4 to RE-1.  

2.  The applicant states, in effect, that his under honorable conditions discharge should be upgraded to an honorable discharge, and that his RE code should be changed so that he can return to the Army.  He also states that he was never convicted of any crime or wrong doing while he was in the Army.  

3.  The applicant submitted a memorandum from his former trial defense attorney, and a copy of his DD Form 214 (Certificate of Release or Discharge From Active Duty).

CONSIDERATION OF EVIDENCE:

1.  The applicant’s record shows that he initially enlisted in the Regular Army and entered active duty on 18 August 2000.  His military occupational specialty (MOS) was 88H (Cargo Specialist).  The highest grade he attained was pay grade E-4.

2.  The applicant’s military records show that on 17 August 2004, he voluntarily requested discharge under the provisions of Chapter 10 (Discharge in Lieu of Trial by Court-Martial), Army Regulation 635-200 (Enlisted Personnel) for committing rape, indecent acts, and wrongfully using cocaine and disobeying a lawful order.  (The specific facts and circumstances surrounding the applicant’s court martial charges are not available for review).  The applicant acknowledged 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 which authorized the imposition of a bad conduct or dishonorable discharge. 

3.  On 2 September 2004, the appropriate authority approved the applicant’s discharge under the provisions of Army Regulation 635-200, Chapter 10, and directed that he receive an Under Other Than Honorable Conditions Discharge Certificate.  He also directed that the applicant be reduced in rank and pay grade from specialist/E-4 to private/E-1.  




4.  On 10 September 2004, the applicant was discharged under the provisions of Army Regulation 635-200, Chapter 10.  He was issued a discharge under other than honorable conditions that was later upgraded by the Army Discharge Review Board to a discharge under honorable conditions (general) on 
9 June 2006.  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.  The applicant submitted a memorandum from his defense attorney Ms.  M*****t T****o who stated that his discharge under other than honorable conditions was upgraded to an honorable discharge, and requests that his 
RE code be changed so that he can return to the Army.  He also stated that he is currently a deputy sheriff, and has almost completed his associate's degree in criminal justice.  He further stated that he understands that his actions in the past were not up to the values of the military, but that he never failed at anything in his life, and looks at this issue as a big blemish on his life.  He continued by essentially stating that he wants to have the opportunity to make things right, and that the things that bothered him in the past no longer exist.  He also stated that he feels that he would be a model Soldier if given another chance.  

6.  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.

7.  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 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 RA RE codes.  RE-4 applies to persons who are permanently disqualified for continued Army service.

8.  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 of KFS is the appropriate code to assign to Soldiers who separated under the provisions of paragraph 10 of Army Regulation 635-200, in lieu of trial by court-martial.  The SPD/RE Code Cross Reference Table included in the regulation stipulates that the appropriate RE code assignment for the SPD code of KFS is RE Code 4. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions were carefully considered and found to be without merit.

2.  A discharge under other than honorable conditions is normally considered appropriate for a discharge in lieu of court-martial.  Even so, the ADRB voted to grant the applicant a general, under honorable conditions discharge.

3.  The evidence of record confirms the applicant’s separation processing was accomplished in accordance with the applicable regulation.  RE-4 applies to persons who are permanently disqualified for continued Army service.  By regulation, the RE-4 code assigned to the applicant was the proper code to assign members separating under the provisions of Army Regulation 635-200, Chapter 10 for discharge in lieu of trial by court martial.  This includes the assignment of his SPD and RE codes.  All requirements of law and regulation were met and the rights of the applicant were protected throughout the separation process.  As a result, the RE-4 code and the narrative reason for separation were and still are appropriate.  

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__CD __  __LMD__  __JCR___   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.




___Carmen Duncan  ___
      CHAIRPERSON