IN THE CASE OF:	  

		BOARD DATE:	        24 July 2008

		DOCKET NUMBER:  AR20080006427 


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 that his narrative reason for separation be changed to “Convenience of the Government,” and he requests that his reentry (RE) code be changed to RE code 3 or better.

2.  The applicant states that a combination of events led to his being absent without leave (AWOL).  From the moment he met his squad leader, Sergeant (SGT) T___, SGT T___ harassed him and his family relentlessly.  The applicant was recovering from shin splints incurred while in basic training, but SGT T___ would break his medical profile.  SGT T___ would also call his home and cell phone all hours of the day and many nights, drunk.  He would leave nasty, hateful, obscene messages on his answering machines that his wife and young daughters also witnessed.  SGT T___ would openly, daily, and in front of his (the applicant’s) wife, humiliate him.  

3.  The applicant states that after a month of the harassment he asked his platoon sergeant to move him to another squad.  Nothing happened.  Since he could get no answers from his platoon sergeant or his first sergeant, he went directly to the other squad leader, SGT K___, and asked to be placed in his squad.  SGT K___ said he would like to have the applicant, but nothing happened.  At that point, he was desperate to get away and went AWOL.  That was the absolute last thing he ever wanted to do.  Being a Soldier in the Army is where he has wanted to be for many years and still does.  After two months, he returned to Fort Stewart.  He was never evaluated, and he (and his wife) was told that if he ever wanted to reenlist that he could.  

4.  The applicant states that he feels the Army processed him out instead of talking the time to resolve any of the issues that caused him to go AWOL because the commander was preparing for deployment.  He would never have gone AWOL if his command had done its job and taken care of him as a Soldier. 

5.  The applicant provides his birth certificate; his driver’s license; a letter, dated 25 March 2008, from his wife; an Individual Training Record – Infantry OSUT (one-station unit training); an x-ray report; an Individual Sick Slip; his Enlisted Record Brief; and a portion of his Army Discharge Review Board (ADRB) Case Report and Directive.

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 2 April 1970.  He enlisted in the Regular Army on  5 February 2004.  

2.  On 9 March 2004, the applicant was diagnosed with shin splints.  He completed basic combat training and advanced individual training and was awarded military occupational specialty 11C (Indirect Fire Infantryman).

3.  On or about 7 June 2004, the applicant was assigned to Fort Stewart, GA.

4.  On 17 December 2004, court-martial charges were preferred against the applicant charging him with being AWOL from on or about 31 August 2004 to on or about 5 November 2004.

5.  On 10 January 2005, after consulting with legal counsel, the applicant voluntarily requested a discharge under the provisions of Army Regulation     635-200, chapter 10 in lieu of trial by court-martial.  He was advised that by submitting this request for discharge he acknowledged that he understood the elements of the offense(s) charged and was guilty of the charge(s) against him or of (a) lesser included offense(s) therein contained which also authorized the imposition of a bad conduct or dishonorable discharge.  He also stated that under no circumstances did he desire further rehabilitation for he had no desire to perform further military service.  The applicant was advised of the effects of a discharge under other than honorable conditions and that he might be deprived of many or all Army and Department of Veterans Affairs benefits.  He submitted a statement in his own behalf.

6.  In his statement, the applicant stated that the second day he got to basic combat training was when he realized that the military was not for him.  He stated that everything the recruiters had told him and his wife turned out to be false.  He realized that joining the military was a mistake.  He stated that during basic combat training he started experiencing pain in his legs.  At one point, he was on crutches.  He tried to Soldier through.  His drill sergeants explained to him that the Army was nothing like basic training, that it was more of a nine-to-five job, and that things would be better once he got to his first duty station.  The climate would be more family-oriented.  The first day he got to Fort Stewart he informed the first sergeant that he was suffering from pain in his legs.  The first sergeant advised him to wait two weeks, and if he still had pain to let the first sergeant know and they would take care of it.

7.  The applicant stated that after two weeks he went through his chain of command and spoke with SGT T___ and his platoon sergeant.  SGT T___ basically ridiculed him about the issue.  Anything that had to do with his seeking medical treatment, or his responsibilities as a father, were ridiculed by SGT T___.  The applicant remembers having to do everything as if he was not on profile.  There were times that SGT T___ called the applicant’s house drunk in the middle of the night, with slurred speech and a heavy accent, ranting and cursing at him or his wife.  The applicant stated that he sought help from his platoon sergeant, but the platoon sergeant did little to address the problems with his legs, either.  He started drinking heavily.  He became depressed.  He and his wife sat down and decided that perhaps the best course would be for him to go AWOL.  

8.  The applicant stated that his financial situation had deteriorated since he joined the Army.  His family was better off before he joined the military.  Even before he went AWOL, the monies he received were never enough to support his family.  Since he was self-employed for 16 years he needed more income than the average Soldier.  

9.  On 18 January 2005, the appropriate authority approved the applicant’s request and directed he receive a discharge under other than honorable conditions.

10.  On 1 February 2005, the applicant was discharged, in pay grade E-1,    under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial with a discharge under other than honorable conditions.  His DD Form 214 (Certificate of Release or Discharge) shows he had completed           11 months and 27 days of creditable active service (actually 9 months and        19 days, since his DD Form 214 does not reflect his approximately 67 days of lost time).  He was given a separation code of KFS (voluntary discharge under the provisions of Army Regulation 635-200, chapter 10) and an RE code of 4.


11.  On 25 January 2008, the ADRB denied the applicant’s request for a discharge upgrade.

12.  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 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.  A discharge under other than honorable conditions is normally considered appropriate.  

13.  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 U.S. 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.

14.  RE code 4 applies to persons not qualified for continued Army service, and the disqualification is not waivable.  

15.  The Separation Program Designator (SPD)/Reentry (RE) Codes Cross Reference Table states that when the separation code is KFS then RE code        4 will be given.

DISCUSSION AND CONCLUSIONS:

1.  All of the applicant’s contentions have been carefully considered.  

2.  It is unfortunate that the applicant was assigned to a squad with an unprofessional squad leader.  However, as the applicant “jumped” the chain of command once, it is not understood why he did not do so again, at higher levels (i.e., platoon leader or company commander).  He had several options outside of his chain of command as well.  If because of deployment preparation higher-level members of his chain of command were not available he could have gone to the chaplain’s office or to the installation Inspector General.  In addition, since he contends that his medical profile was being violated by his squad leader, he could have gone through medical channels.  

3.  The applicant might have been an inexperienced Soldier, but he was not a young man inexperienced in life.  The actions he accused SGT T___ of taking (i.e., leaving nasty, hateful, obscene messages on his answering machines) bordered on criminal conduct.  If he and his wife sat down and decided that perhaps the best course would be for him to go AWOL, and if the applicant was already suffering all the harassment he could take, it is not understood why he or his wife did not press criminal charges, or at least make a formal complaint through military channels, against SGT T___.

4.  The applicant now contends that being a Soldier in the Army is where he has wanted to be for many years and still does.  However, in his statement with his request for discharge he stated that the second day he got to basic combat training is when he realized that the military was not for him.  That statement did not appear to be related to his shin splint problems and definitely was not related to his problems with SGT T___.  In his request for discharge, he also indicated that under no circumstances did he desire further rehabilitation for he had no desire to perform further military service.

5.  The applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.  The applicant was not forced to take this discharge.  If he had wanted to remain in the Army, he could have taken his chances with a court-martial.  He could have raised the issues concerning his squad leader as mitigating factors.  It was his decision to voluntarily request separation.

6.  Again, it is regrettable that the applicant was assigned to a squad with an unprofessional squad leader.  However, given all the circumstances of his case that is not a basis which would warrant granting the relief requested.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xx____  ___xx___  ___xx___  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.



      _________xxxx_________
      	    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)                                         AR20080006427



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ABCMR Record of Proceedings (cont)                                         AR20080006427



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