IN THE CASE OF:	  

	BOARD DATE:	  24 JUNE 2008

	DOCKET NUMBER:  AR20080004731 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his reentry eligibility (RE) code of RE-4 be upgraded to a code of RE-3.

2.  The applicant states, in effect, that his code of RE-4 was too harsh; therefore, he would like it upgraded to at least a code of RE-3.  He states that some extreme conditions existed between him and his wife at the time of his separation.  His circumstances contributed to him being disrespectful towards his superiors.  He wants to come back into the Army and serve his country.  He believes he could be a great Soldier if given a second chance.

3.  The applicant provides a copy of separation document (DD Form 214).

CONSIDERATION OF EVIDENCE:

1.  The applicant's military personnel record shows he enlisted in the Regular Army on 28 March 2005.  He completed the necessary training and was awarded military occupational specialty (MOS) 88M (Motor Transport Operator).

2.  On 5 November 2005, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being disrespectful in deportment towards a superior warrant officer by making an obscene gesture with the middle finger, being disrespectful towards superior Noncommissioned Officers (NCOs) in language and action, and willfully disobeying a lawful order from a NCO.
3.  The applicant was charged with five specifications of failing to go to his appointed place of duty, one specification for being absent without leave (AWOL) during the period 6 December 2005 to 12 December 2005, one specification of being disrespectful, one specification for disobeying a lawful command from a superior commissioned officer, one specification for being disrespectful in deportment towards a Command Sergeants Major (CSM), by ripping off the U.S. Army tape from the Battle Dress Uniform (BDU) and contemptuously walking away from the CSM.  Also, one specification for breaking restriction.

4.  On 15 December 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 UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial.

5.  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 or dishonorable discharge.  He further acknowledged he understood that if his 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.  He also acknowledged that he understood that he may expect to encounter substantial prejudice in civilian life by reason of an Under Other Than Honorable Conditions Discharge.  He further understand that there is no automatic upgrading or review by any Government agency of a less than honorable discharge and that he must apply to the Army Discharge Review Board or the Army Board of Correction of Military Records if he wish review of his discharge.  He realized that the act of consideration by either board does not imply that his discharge will be upgraded.

6.  On 3 January 2006, the applicant's commander forwarded his recommendation for separation of the applicant to the separation approving authority.

7.  On 10 January 2006, the approving authority approved the applicant's request and directed the applicant be discharged in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations), 
Chapter 10, and his service be characterized as Under Other Than Honorable conditions.

8.  On 26 January 2006, the applicant was discharged from active duty in lieu of trial by court martial, for the good of the service, in accordance with Army Regulation 635-200, Chapter 10.  He was assigned a separation program designator code (SPD) code of KFS and an RE code of RE-4.  According to his DD Form 214, he had completed a total of 9 months and 23 days of Net Active Service This Period and accrued 6 days of time lost.

9.  Army Regulation 635-5-1 (Separation Program Designated Codes), Table
2-3, states that the SPD code KFS denote discharge for the good of the service in lieu of court-martial.

10.  The Army Human Resources Command publishes a cross-reference table of SPD and RE codes.  This cross-reference table shows that an SPD code of KFS is assigned an RE code of RE-4.

11.  The applicant applied to the Army Discharge Review Board (ADRB) on 
30 September 2006.  On 18 December 2007, ADRB reviewed the applicant's record and determined that the applicant's characterization was too harsh, and recommended that his characterization be upgraded to general, under honorable conditions and determined his reason for discharge was proper and equitable.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his RE-4 should be upgraded to at least an  
RE-3 so that he may reenter the Army and serve his country.

2.  There is no evidence or indication that there was an error or injustice, which caused the applicant to be discharged, nor has the applicant contended that there was an error or injustice in his discharge process.

3.  Since the applicant was properly discharged and appropriately assigned a RE code of RE-4 and a SPD code of KFS there is no reason to change the correctly assigned codes.  

4.  The applicant’s contentions that the RE code of RE-4 was too harsh and that some extreme conditions existed between him and his wife at the time of his separation were considered.  However, these contentions are not sufficient to change his RE code.  

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

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
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080004731



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ABCMR Record of Proceedings (cont)                                         AR20080004731



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