IN THE CASE OF:	  

		BOARD DATE:	  5 August 2008

		DOCKET NUMBER:  AR20080007221 


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 reentry eligibility (RE) code of RE-4 be changed to an RE-3 so he can get on the fast track back to the Army.  

2.  The applicant states, in effect, his discharge was upgraded to a discharge under honorable conditions by the Army Discharge Review Board (ADRB).  However, he still has an RE code of RE-4 that prevents him from being able to re-enter the Army.  He further states that the recruiters he has spoken with told him they cannot help him unless his RE code is changed.  He further states there was no excuse for his actions in the Army and he is sorry for what he did.  He further states he would just like a second chance to prove to everyone, himself included, that he can be a great Soldier and serve in the Army in a positive way.

3.  The applicant provides a copy of a diploma for completion of the Army Airborne Course, a certificate for the award of the Army Commendation Medal, a Certificate of Achievement from Task Force 2-5 Infantry, and his ADRB - Case Report and Directive in support of his application.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel states, in effect, the applicant's RE code was based on minor and isolated offenses and has adversely affected his future.  Counsel further states the applicant has submitted documentation indicating his accomplishments and awards that would have a positive impact on membership in a Reserve Component of the military.  Counsel further states that the issues raised in the applicant's application amply advance his contentions and substantially reflect the probative facts needed for equitable review.

2.  Counsel provides no additional evidence or official documentation in support of the applicant's application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military personnel record shows he enlisted in the Regular Army on 1 October 2002 for a period of 3 years.  He successfully completed basic combat and advanced individual training and was awarded the military occupational specialty 21B (Combat Engineer).

2.  The applicant was deployed to Iraq in support of Operation Iraqi Freedom during the period from 6 September 2003 through 10 May 2004.  

3.  The applicant was awarded the Army Commendation Medal for meritorious service during Operation Iraqi Freedom in support of Task Force All American during the period from 28 August 2003 to 1 March 2004.

4.  On 10 January 2005, court-martial charges were preferred against the applicant for conspiracy to commit an offense under the Uniform code of Military Justice (UCMJ) to wit: larceny of money of a value more than $500.00.  He was also charged with two specifications of making false official statements to military police and willfully and maliciously burning his automobile with the intent to defraud his insurance company.

5.  On 12 April 2005, the applicant consulted with legal counsel and voluntarily requested discharge in lieu of trial by court-martial under the provisions of Chapter 10 of Army Regulation 635-200 (Personnel Separations).  He acknowledged that he was making the request of his own free will, he understood the elements of the offenses he was charged with, and that he was guilty of the offense with which he was charged.  He further acknowledged that he was afforded the opportunity to speak with counsel prior to making this request.  In his request, the applicant acknowledged that he was advised he may be furnished an Under Other Than Honorable Conditions Discharge Certificate, that he would be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration (now known as the Department of Veterans Affairs), and that he may expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.

6.  The applicant's unit commander and intermediate commanders recommended approval of his Chapter 10 request with an under other than honorable conditions discharge.

7.  On 6 May 2005, the separation authority approved the applicant's request for discharge in lieu of court-martial and that the characterization of service be under other than honorable conditions.

8.  On 19 May 2005, the applicant was discharged under the provisions of Chapter 10 of Army Regulation 635-200 in lieu of trial by court-martial.  The applicant was assigned a separation program designator (SPD) code of "KFS" and assigned an RE code of RE-4.  He had completed 2 years, 6 months, and 
21 days active service that was characterized as under other than honorable conditions.  

9.  The applicant applied to the ADRB to upgrade his discharge.  On 5 March 2008, the ADRB reviewed the applicant's request and determined that the applicant's discharge was properly issued but inequitable as to the characterization.  The ADRB granted a change of characterization to under honorable conditions.  However, the ADRB determined that the reason for discharge was proper and equitable.

10.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the administrative 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 must include the Soldier's acknowledgement that the Soldier understands the elements of the offense(s) charged and that the Soldier is guilty of the charge(s) or of a lesser included offense therein contained which also authorized the imposition of a punitive discharge.  A discharge under other than honorable conditions is normally considered appropriate.  

11.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes), then in effect, prescribed the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons.  The regulation showed that the SPD code “KFS” as shown on the applicant’s DD Form 214 specified the narrative reason for discharge as “In Lieu of Trial by Court-Martial."

12.  The Separation Program Designator Code (SPD)/Reentry (RE) Code Cross-Reference Table, dated 31 March 2003, shows that the appropriate RE code for the SPD code of "KFS" is RE-4.

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 (Regular Army and Army Reserve Enlistment Program), then in effect, covered 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 prescribed basic eligibility for prior service applicants for enlistment. That chapter included a list of Armed Forces RE codes.

14.  Paragraph 3-22 (U.S. Army Reentry Eligibility (RE) Codes) of Army Regulation 601-210, then in effect, provided that RE-4 applied to a person separated from their last period of service with a non-waivable disqualification. 

15.  Paragraph 3-27 (Correction of Army RE codes) of Army Regulation 601-210, then in effect, provided that RE codes may be changed only if they are determined to be administratively incorrect.

16.  The Table of Maximum Punishments of The Manual for Courts-Martial (MCM), United States, 2005 edition, shows that the maximum punishment for larceny of money of a value more than $500.00 is a dishonorable discharge, total forfeiture of pay, reduction to lowest grade, and 5 years confinement.  In addition, the maximum punishment for making false official statements is a dishonorable discharge, total forfeiture of pay, reduction to lowest grade, and 5 years confinement.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his RE code should be changed to RE-3 so he can re-enter the Army.  

2.  Counsel contends the applicant's RE code was based on minor offenses.  However, according to the MCM, if the applicant had been convicted as a result of a court-martial for the larceny and making false official statements he could have been sentenced to serve up to 10 years in confinement and a dishonorable discharge.  Therefore, the offenses are not considered minor.

3.  The applicant voluntarily requested discharge, admitted his guilt, and acknowledged that he could receive an under other than honorable conditions discharge.  
4.  The applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial was administratively correct and in conformance with applicable regulations.  

5.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.

6.  The applicant was granted a change in the characterization of his discharge by the ADRB.  However, the reason for separation remains appropriate due to the fact the applicant requested to be discharged in lieu of a trial by court-martial. Therefore, the SPN code of KFS is correct.  

7.  The SPD/RE Code Cross-Reference Table shows that for the SPN code "KFS"," a RE code of RE-4 is assigned.  Therefore, the applicant's RE code is administratively correct.

8.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  

9.  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 that 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)                                         AR20080007221



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ABCMR Record of Proceedings (cont)                                         AR20080007221



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