RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  08 May 2008
	DOCKET NUMBER:  AR20080001975 


	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:


M

Chairperson

M

Member

M

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 reentry (RE) code of 4 be upgraded. 

2.  The applicant essentially states that he had a family matter that he had to take care of right away, and had to leave without going through his chain of command, and for that he is sorry.  He also states that he told the sergeant on duty at the time that he had to leave because his wife told him at the time that she was going to file for divorce and take his kids.  He further states that he had no choice but to go absent without leave (AWOL), and that his family comes first and the Army is second to him.  

3.  The applicant provides "Member – 1" and "Member – 4" copies of his 
DD Form 214 (Certificate of Release or Discharge from Active Duty), his discharge orders and a letter of debarment, a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), and a 
DA Form 31 (Request and Authority for Leave) in support of this application. 

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military records show that he enlisted in the Regular Army on 17 January 2007.

2.  On 17 May 2007, the applicant accepted nonjudicial punishment under Article 15 of the Uniform Code of Military Justice for absenting himself without authority from his unit on or about 6 May 2007, and remaining absent until on or about 
11 May 2007.  His punishment consisted of forfeiture of $250.00 per month for 
1 month, 14 days of extra duty, and 14 days of restriction.

3.  On 29 August 2007, the applicant voluntarily requested discharge under the provisions of Chapter 10 (Discharge in Lieu of Trial by Court-Martial), Army Regulation 635-200 (Active Duty Enlisted Administration Separations) in lieu of trial by court-martial for absenting himself without authority from his organization on or about 3 June 2007, and remaining so absent until on or about 27 August 2007.  He 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. 

4.  On 8 November 2007, the proper approval 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.  

5.  On 30 November 2007, the applicant was discharged under the provisions of Army Regulation 635-200, Chapter 10.  He was issued a discharge under other than honorable conditions.  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.”  

6.  The applicant essentially stated that he had a family matter that he had to take care of right away, and had to leave without going through his chain of command, and for that he is sorry.  He also stated that he told the sergeant on duty at the time that he had to leave because his wife told him at the time that she was going to file for divorce and take his kids.  He further stated that he had no choice but to go AWOL, and that his family comes first and the Army is second to him.  

7.  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.

8.  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 and the United States 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.  RE codes 1 and 2 permit immediate reenlistment if all other criteria are met.  An RE code of 3 applies to persons not qualified for continued Army service, but the disqualification is waivable.  An RE code of 4 indicates separation from the last period of service with a disqualification which cannot be waived and ineligibility for reenlistment.  This regulation further provides that RE codes may only be changed if they are determined to be administratively incorrect. 

9.  Army Regulation 635-5-1 (Separation Program Designator 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. Additionally, Table 2-3 (SPD/RE Code Cross Reference Table), AR 635-5-1 (Separation Documents) establishes RE Codes to be assigned for each SPD.  

10.  An SPD code of "KFS" applies to persons who are discharged in lieu of trial by court-martial under the provisions of Chapter 10, Army Regulation 635-200.  The SPD/RE Code Cross Reference Table shows that an RE code of 4 is the applicable RE code assigned for individuals separated in lieu of trial by court-martial.  An RE code of 4 indicates that the applicant was separated from his last period of service with a disqualification which cannot be waived and is ineligible for reenlistment.

11.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his RE code of 4 should be upgraded. 

2.  The applicant's contentions were considered; however, 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.

3.  It is clear that the applicant was charged with the commission of an offense punishable under the Uniform Code of Military Justice with a punitive discharge.  It is also clear that he voluntarily (emphasis added) requested discharge from the Army in lieu of trial by court-martial.  The applicant did not provide any evidence which shows that any requirements of law or regulation were not met, or that his rights were not fully protected throughout the separation process.

4.  The applicant's RE code is based on his reason for discharge and cannot be changed unless the applicant's narrative reason for discharge is changed.  His narrative reason for discharge was based on his voluntary request for discharge in lieu of trial by court-martial, and there is insufficient basis upon which to change this reason.  In view of the foregoing, there is no basis for granting relief to the applicant in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   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.




      ___        XXX                ___
                CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20080001975



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