IN THE CASE OF:	  

	BOARD DATE:	  

	DOCKET NUMBER:  AR20080006756 


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, reconsideration of his request to change his Reentry (RE) Code.

2.  The applicant states, in effect, he attended Basic Combat Training (BCT) at Fort Benning, Georgia.  He also states that during BCT he was punched in the back of the head by Drill Sergeant D___ for stepping out of formation after he had become fed up with the abuse by the drill sergeants and decided he no longer wanted to be there. 

     a.  The applicant states the first night of BCT, Drill Sergeant D___ began issuing verbal warnings that the trainees would get their butts kicked if they stepped out of line.  He also states that after about 1 week, the drill sergeants started slamming their chests into the trainees’ chests.  The applicant further states that Drill Sergeant N_____ grabbed a trainee by the helmet, slammed his head against the wall, and pushed him to the ground.

     b.  The applicant states that he understood that BCT would not be easy, he could care less about a guy spitting and cursing in his face, but he could not understand the physical abuse.  The applicant states that after getting punched by the drill sergeant, he decided to leave on “Exodus” and return home.

     c.  The applicant states that he called his recruiter, but the recruiter told him that he had done all he could do for him.  The applicant decided not to return to Fort Benning, Georgia, and when he turned himself in, he was sent to Fort Sill, Oklahoma.  The applicant states that he then began to learn the rules of the Army and use of the chain of command.  The applicant also states that he told the First Sergeant of the Personnel Control Facility about the incident with the drill sergeant and gave him the names of other trainees who witnessed the incident.  The applicant states that the First Sergeant offered him the opportunity to train in another military occupational specialty.

     d.  The applicant states, in effect, when he went to the Judge Advocate General’s office to get processed out he was told that if he reported the incident about the drill sergeant, it would take time for the Criminal Investigation Division (CID) to investigate it.  The applicant adds that the whole process turned out to be a big mistake for him.

     e.  The applicant states, in effect, he has been trying to reenter the Army ever since he was discharged, but he has received very little help from officials he has contacted at Fort Benning, Georgia.  He adds that he posted what happened to him on U-Tube in hopes that somebody will help him and he has also contacted his congressman.

     f.  The applicant adds, “[i[f I knew then what I have learned since, I would have never went AWOL, I would have ran, if necessary to every company or every brigade to find someone who could help because somebody would have.”  He concludes by requesting that his RE Code be changed to at least an RE-3, so that he may reenter the Army.

3.  The applicant provides a 6-page self-authored statement, undated; a letter from Private First Class Michael T. W______, undated; and a letter from Jason M_____, dated 21 December 2007.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20070010436, on 20 December 2007.
 
2.  The applicant’s military service records show that he enlisted in the U.S.Army Reserve on 16 October 2006 and entered active duty in the Regular Army for a period of 3 years and 19 weeks on 2 November 2006.

3.  The applicant’s military service records contain a DA Form 4187 (Personnel Action), dated 5 February 2007, subject:  Duty Status.  This document shows the applicant was reported absent without leave (AWOL) from his unit (i.e., Company F, 2nd Battalion, 58th Infantry, Fort Benning, Georgia) on 5 January 2007 and was dropped from the rolls of the unit, effective 0100 hours, 5 February 2007.
4.  The applicant’s military service records contain a DD Form 616 (Report of Return of Absentee), dated 9 April 2007.  This document shows the applicant surrendered to military authorities at Fort Leavenworth, Kansas, at 1522 hours,
9 April 2007.

5.  The applicant’s military service records are absent a copy of his administrative separation packet.

6.  The applicant’s military service records contain a DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he entered active duty on
2 November 2006 and was discharged under other than honorable conditions on 11 July 2007.  Item 29 (Dates of Time Lost During This Period) shows he had time lost under Title 10, United States Code, section 972, from 5 January 2007 to 9 April 2007.  Item 18 (Remarks) shows, in pertinent part, the applicant was in an excess leave status for 90 days from 13 April 2007 through 11 July 2007.  The DD Form 214 shows that the separation authority and reason for his discharge was Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial.  Based on the authority and reason for separation, the applicant was assigned a Separation Program Designator (SPD) Code of “KFS” and an RE Code of “4.”  

7.  In support of his application, the applicant provides the following documents.

     a.  A 6-page self-authored statement, undated, which was previously introduced and summarized in the applicant’s statement.

     b.  A letter from Private First Class Michael T. W______, undated, in which he states that he attended BCT with the applicant in November 2006 and witnessed abuse by the drill sergeants.  He also describes an incident where a drill sergeant “took a Private down to the ground from behind and punched him in the face twice as another Drill Sergeant was laying on him, this happened after he stepped out of the formation stating he was done.  Private [James] G_____ was the person who was hit.”

     c.  A letter from Jason M_____, dated 21 December 2007, in which he states he “was standing in formation behind Private James G_____ when Drill Sergeant D___ approached Private G_____ from behind and pulled his arm back.  Private G_____ reacted by pulling his own arm back to his side.  Next, Drill Sergeant D___ tackled Private G_____ from behind and punched him in the head.  While on top of Private G_____, Drill Sergeant D___ ordered the platoon to move away from the situation.”


8.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) prescribes policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons.  Chapter 10 (Discharge for the Good of the Service) of this Army regulation provides that a member who has committed an offense or offenses, the punishment for any of which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service.

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.  It identifies the SPD code of “KFS” as the appropriate code to assign Regular Army enlisted Soldiers who are voluntarily discharged under the provisions of Chapter 10, Army Regulation 635-200, based upon a request for discharge in lieu of trial by court-martial.

10.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program), in pertinent part, provides 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.  RE-4 applies to persons who have a non-waivable disqualification and may not request reentry.  The Army regulation further provides that, prior service Army personnel will be advised that RE codes may be changed only if they are determined to be administratively incorrect.

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.  The 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, in effect, that his request to change his RE Code from RE-4 to RE-3 should be reconsidered because of the physical abuse he endured from drill sergeants during basic training that caused him to go AWOL and resulted in his discharge.

2.  The applicant’s request for change of the RE Code that he received in conjunction with his discharge from the U.S. Army and the supporting evidence he provided were carefully considered.  The sincerity of the comments in the writings provided by the applicant and 2 former trainees he served with in basic training are not in question.  In fact, the allegations the applicant raises cause serious concern for the Board in the consideration of this case.  However, an allegation (or even the actual presence) of abuse does not excuse the actions of the applicant when he decided to absent himself from his unit without leave on
5 January 2007 and then remain absent for a period of 94 days.  As the applicant admits in his own statement, he failed to address the allegations of abuse through his chain of command at the time.  Moreover, the applicant provides no documentary evidence that he sought assistance, at the time, from the Inspector General, Equal Opportunity or Chaplain’s office.  Therefore, there is insufficient evidence to show that the applicant made a reasonable effort to mitigate the alleged situation and environment that he claims caused him to go AWOL.

3.  The evidence of record confirms the applicant’s separation from the Army was based on his voluntary request for discharge in lieu of trial by court-martial.  

4.  There is a presumption of administrative regularity in the conduct of governmental affairs.  This presumption can be applied to any review unless there is substantial creditable evidence to rebut the presumption.  In this instance, the "presumption of regularity" is based on Army Regulation 635-200, Chapter 1 (General Provisions), which provides the processing procedures for separation.  Therefore, in the absence of evidence to the contrary, the Board concludes that the applicant was properly and equitably discharged in accordance with the regulations in effect at that time, all requirements of law and regulations were met, the rights of the applicant were fully protected throughout the separation process, and the RE-4 code he received was appropriately assigned based on the authority and reason for his separation.  Thus, the RE-4 code assigned at the time of the applicant's discharge was, and remains, valid. Therefore, there is no basis to change the applicant’s RE Code.

5.  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

____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 to amend the decision of the ABCMR set forth in Docket Number AR20070010436, dated 20 December 2007.




       _    ___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)                                         AR20080006756



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ABCMR Record of Proceedings (cont)                                         AR20080006756



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