RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  8 April 2008
	DOCKET NUMBER:  AR20080001767 


	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:


Ms. Linda D. Simmons

Chairperson

Mr. David K. Haasenritter

Member

Mr. Edward E. Montgomery

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 his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected as follows:

	a.  Item 18 (Remarks) to show his service in Iraq during the period 27 February 2003 to 3 February 2004; and 

	b.  Item 27 [Reentry Code (RE Code)] from "RE-4" to a more favorable one. 

2.  The applicant states that his previous enlistment was ruined by a mitigating factor, his addiction to cocaine.  But, as his record shows, he can serve honorably and wants his RE code changed so he could reenter the Army.  He further adds that he served in Iraq and wants his combat service shown on his records.

3.  The applicant did not provide any additional documentary evidence in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show that he enlisted in the Regular Army for a period of 4 years on 9 January 2002.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 92F (Petroleum Supply Specialist).  The highest rank/grade he attained during his military service was specialist (SPC)/E-4.  

2.  The applicant’s records further show he was awarded the Army Achievement Medal, the Army Commendation Medal, the Global War on Terrorism Service and Expeditionary Medals, the National Defense Service Medal, the Army Service Ribbon, two Overseas Service Bars, the Air Assault Badge, and the Driver and Mechanic Badge.  His records do not show any significant acts of valor during his military service.

3.  On 8 August 2002, the applicant was issued an administrative General Officer Memorandum of Reprimand (GOMOR) for driving under the influence of alcohol on 3 July 2002.

4.  On 28 February 2005, Court-Martial charges were preferred against the applicant for two specifications of being absent without leave (AWOL) during the periods on or about 17 December 2004 through on or about 19 January 2005 and on or about 27 January 2005 through on or about 24 February 2005; one specification of failing to go to his appointed place of duty on or about 27 January 2005; and one specification of wrongfully using cocaine on or about 21 January 2005.

5.  On 1 March 2005, 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 Uniform Code of Military Justice (UCMJ), of the possible effects of an under other than honorable conditions discharge if the 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).

6.  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.  

7.  On 3 March 2005, the separation authority approved the applicant's request for discharge, ordered him reduced to the grade of private/E-1, and directed he receive an Under Other Than Honorable Conditions Discharge Certificate.  On 11 March 2005, the applicant was discharged accordingly.  The DD Form 214 he was issued shows he was discharged under other than honorable conditions in accordance with chapter 10 of Army Regulation 635-200, in lieu trial by Court-Martial.  This form also shows that he completed 3 years and 29 days of creditable military service and had 34 days of lost time due to AWOL. Item 12f (Foreign Service) of his DD Form 214 shows the entry “0000 11 07” indicating he served 11 months and 7 days of foreign service, Item 18 (Remarks) does not show service in Iraq, and Item 27 (Reentry Code) shows the entry "4."

8.  An electronic mail (email) from The Defense Finance and Accounting Service (DFAS), Indianapolis, Indiana, dated 20 March 2008, confirms that the applicant received Hazardous Fire Pay/Imminent Danger Pay (HFP/IDP) from 1 February 2003 through 29 February 2004 for his service in Iraq.


9.  Hostile Fire/Imminent Danger Pay (HFP/IDP) is a military entitlement paid for any month [emphasis added] in which a Soldier was entitled to basic pay and in which he/she was:  subject to hostile fire or explosion of hostile mines; on duty in an area in which he/she was in imminent danger of being exposed to hostile fire or explosion of hostile mines and in which, during the period he/she was on duty in that area, other members of the uniformed services were subject to hostile fire or explosion of hostile mines; killed, injured, or wounded by hostile fire, explosion of a hostile mine, or any other hostile action; or on duty in a foreign area in which he was subject to the threat of physical harm or imminent danger on the basis of civil insurrection, civil war, terrorism, or wartime conditions.  

10.  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, 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.

11.  Army Regulation 635-200 states, in pertinent part, 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.  Table 3-1 included a list of the Regular Army Reenlistment Eligibility Codes (RE codes):

	a.  RE–1, applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army.  They are qualified for enlistment if all other criteria are met.

	b.  RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable.  They are ineligible unless a waiver is granted. 

	c.  RE-4 applies to Soldiers separated from last period of service with a nonwaivable disqualification.



12.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  The regulation directs, in pertinent part, that the purpose of the separation document is to provide the individual with documentary evidence of their military service.  It is important that information entered on the form should be complete and accurate. The DD Form 214 is a summary of a Soldier's most recent period of continuous active duty to include attendance at basic and advanced training and is prepared for all personnel at the time of their retirement, discharge, or release from active duty.  Item 18 (Remarks) of the Soldier's DD Form 214 is used for mandatory requirements when a separate block is not available and as a continuation for selected entries.  For an active duty Soldier deployed with his or her unit during their continuous period of active service, enter the statement "Service in (Name of County Deployed) from (inclusive dates for example, YYYYMMDD – YYYMMDD).”

DISCUSSION AND CONCLUSIONS:

1.  With respect to the applicant's foreign service in Iraq, evidence of record shows that the applicant received HFP/IDP from February 2003 to February 2004, was awarded the Global War on Terrorism Expeditionary Medal and two Overseas Service Bars, and completed 11 months and 7 days of foreign service as shown in Item 12f (Foreign Service) of his DD Form 214.  

2.  Since HFP/IDP is paid for the whole month regardless of the date the Soldier arrives in the HFP/IDP designated area and since the applicant's pay records show that he received HFP/IDP from February 2003 to February 2004, it appears that the applicant's contention of his service in Iraq is consistent with his pay records at DFAS and with the period of foreign service shown on his DD Form 214.  Therefore, there is sufficient evidence to correct his records to show his service in Iraq from 27 February 2003 to 3 February 2004.

3.  With respect to the applicant's RE code, his records show he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trail by court-martial.  The applicant voluntarily requested, without coercion, discharge from the Army in lieu of trial by court-martial.  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.


4.  Evidence of record confirms that the applicant’s RE code was assigned based on the fact that he was separated under the provisions of chapter 10 of Army Regulation 635-200, in lieu of trail by court-martial, due to AWOL.  The RE code associated with this type of discharge is RE-4.  Therefore, the applicant received the appropriate RE code associated with his discharge.

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.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the RE code is in error or unjust.  The applicant did not submit evidence that would satisfy that requirement.  Therefore, the applicant is not entitled to relief. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__lds___  __dkh___  __eem___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding the entry "Service in Iraq from 2003 02 27 to 2004 02 03" to Item 18 (Remarks) of the applicant's DD Form 214, dated 11 March 2005.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to his Reentry Code.  




							Linda D. Simmons
______________________
          CHAIRPERSON