IN THE CASE OF:	  

		BOARD DATE:	        28 AUGUST 2008

		DOCKET NUMBER:  AR20080008267 


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 general discharge be upgraded to an honorable discharge, and that his narrative reason for separation, separation authority, and reentry (RE) code be changed. 

2.  The applicant essentially states that the narrative reason for his discharge is not correct, and he believes that he served his country honorably in a time of war.  He also states, in effect, that his narrative reason for separation should be corrected because he was given poor legal advice by his legal counsel, who told him that if he did not request a discharge under the provisions of Chapter 10 (Discharge in Lieu of Trial by Court-Martial), Army Regulation 635-200 (Enlisted Active Duty Administrative Separations), he could face up to 6 years in a military prison for the offenses he was being charged with.  He further states that if he could do it all over again, he would choose trial by court-martial.  Further, he states that his discharge should be upgraded to honorable because he joined the Army in time of war and honorably served in Iraq for 1 year in 2005 and 2006.  He continued by essentially stating that his RE code should be changed so that he can rejoin the military and continue his military career.  He also states, in effect, that he received nonjudicial punishment (NJP) on two occasions for assaulting two junior enlisted Soldiers, but that it is untrue, and that he will be submitting statements in his behalf to get his records corrected.  He further states that this is important to him because he wants to rejoin the military and also become a District of Columbia police officer one day.



3.  The applicant provides an undated self-authored letter; an unofficial copy of his original DD Form 214 (Certificate of Release or Discharge from Active Duty); a VA Form 21-22 (Appointment of Veterans Service Organization as Claimant's Representative), dated 19 March 2008; a letter, dated 26 March 2008, from The American Legion to the Army Review Boards Agency; and a statement, dated 
7 July 2008, from The American Legion to the Army Board for Correction of Military Records (ABCMR) in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show that he enlisted in the Regular Army on 17 June 2004.  He completed basic and advanced individual training and was awarded military occupational specialty 92F (Petroleum Supply Specialist).   

2.  The applicant's military records also revealed a history of conduct that is incompatible with good order and discipline.  Between 19 July 2005 and 14 July 2006, the applicant accepted NJP under the provisions of Article 15 of the UCMJ twice.  His offenses included being disrespectful in language towards a noncommissioned officer (NCO) who was then in the execution of his office, willfully disobeying a lawful order from two NCOs, assaulting a junior enlisted Soldier on or about 10 March 2005, unlawfully striking a junior enlisted Soldier on or about 14 June 2006, wrongfully communicating a threat to a junior enlisted Soldier, and wrongfully communicating a threat to an NCO and three other junior enlisted Soldiers.  Collectively, his punishment consisted of a suspended reduction in rank from private/E-2 to private/E-1 and a forfeiture of $288.00, both of which were later remitted, extra duty for 28 days, restriction for 14 days, and an oral reprimand.

3.  The applicant's military records also containes numerous counseling statements in which the applicant was formally counseled for, including but not limited to, intimidating and violent behavior, using profane language, being disrespectful, including disrespectful body language and facial expressions, communicating threats, assaulting individuals, failing to report to an accountability formation, willfully disobeying a superior commissioned officer, failing to obey an order or regulation, and disorderly conduct.

4.  The applicant was essentially awarded the Army Commendation Medal for his service in Iraq from 6 September 2005 to 16 August 2006.





5.  On 13 February 2007, the applicant was informed that the following charges were being preferred against him:

	a.  failing to go at the time prescribed time to his appointed place of duty on or about 5 January 2007;

	b.  absenting himself without authority from his unit on or about 2 February 2007, and remaining so absent until 6 February 2007;

	c.  absenting himself without authority from his unit on or about 9 February 2007, and remaining so absent until 12 February 2007; 

	d.  being disrespectful towards his superior commissioned officer on or about 5 January 2007;

	e.  willfully disobeying a lawful command from his superior commissioned officer on or about 5 January 2007;

	f.  being disrespectful in language and deportment towards his first sergeant on or about 5 January 2007, who was then in execution of her office; 

	g.  wrongfully using provoking gestures towards his first sergeant; and
his company commander.

6.  The applicant was placed in pre-trial confinement on 13 July 2007.

7.  On 21 February 2007, the applicant voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Enlisted Personnel), Chapter 10 (Discharge in Lieu of Trial by Court-Martial).  He acknowledged he understood that he may request discharge for the good of the service because charges were preferred against him under the UCMJ which authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged that he made his request for discharge of his own free will that he was not subjected to any coercion whatsoever by any person and that he had been advised of the implications that were attached to the discharge.  He further acknowledged he was guilty of a charge against him or of a lesser-included offense which 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.  

8.  In his request for discharge, the applicant acknowledged he consulted with counsel, who fully advised him of his rights under the UCMJ, the elements of the offense(s) thereto; the facts which must be established by competent evidence beyond a reasonable doubt to sustain a finding of guilty; and the maximum permissible punishment if found guilty.  He also essentially understood that although his legal counsel furnished him legal advice, the decision was his own.  

9.  The applicant further understood that if his request for discharge was accepted, he may be discharged under other than honorable conditions.  He also acknowledged that he had been advised and understood the possible effects of an under other than honorable discharge and that, as a result of the issuance of such a discharge, 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 named the Department of Veterans Affairs], and that he may be deprived of his rights and benefits as a veteran under both Federal and State law.  Additionally, he acknowledged that he understood that he may expect to encounter substantial prejudice in civilian life because of an under other than honorable discharge.  Further, he understood that there was 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 (ADRB) or the ABCMR if he desired a review of his discharge.  He also realized that the act of consideration by either board did not imply that his discharge would be upgraded.  There is no indication the applicant elected to submit any statements in his own behalf.  

10.  On 27 February 2007, the proper authority approved the applicant’s discharge under Army Regulation 635-200, Chapter 10, and directed that he be furnished an Under Other Than Honorable Conditions Discharge Certificate.  He also essentially directed that the applicant be reduced in rank to private/E-1.  On 
5 March 2007, the applicant was discharged accordingly.  Item 24 (Character of Service) of his DD Form 214 shows an entry of "Under Other Than Honorable Conditions," item 25 (Separation Authority) shows an entry of "AR 635-200, [Chapter] 10," item 27 (Reentry Code) shows an entry on "4," and item 28 (Narrative Reason for Separation) shows an entry of "In Lieu of Trial by Court-Martial."

11.  In a letter, dated 12 May 2008, the ADRB informed the applicant that his discharge under other than honorable conditions was upgraded to a general discharge and, as a result, his rank of specialist/E-4 was also restored.

12.  The applicant essentially stated that the narrative reason for his discharge is not correct, and believes that he served his country honorably in a time of war.  He also stated, in effect, that his narrative reason for separation should be corrected because he was given poor legal advice by his legal counsel, who told him that if he did not request a discharge under the provisions of Chapter 10, Army Regulation 635-200, he could face up to 6 years in a military prison for the offenses he was being charged with.  Further, he stated that his discharge should be upgraded to honorable because he joined the Army in time of war and honorably served in Iraq for 1 year in 2005 and 2006.  He continued by essentially stating that his RE code should be changed so that he can rejoin the military and continue his military career.  He also stated, in effect, that he received NJP under Article 15 of the UCMJ on two occasions for assaulting two junior enlisted Soldiers, but that it is untrue, and that he will be submitting statements in his behalf to get his records corrected.  He further stated that this is important to him because he wants to rejoin the military and also become a District of Columbia police officer one day.

13.  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.

14.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

15.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

16.  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. 

17.  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.  

18.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his general discharge should be upgraded to an honorable discharge, and that his narrative reason for separation, separation authority, and RE code should be changed. 

2.  Notwithstanding the ADRB's decision to upgrade his discharge and restore his rank, it is clear that the applicant was charged with the commission of multiple offenses punishable under the UCMJ with a punitive discharge.  It is also clear that he voluntarily requested discharge from the Army in lieu of trial by court-martial.  As 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, regularity must be presumed in this case.  

3.  The fact that the applicant stated that he was given poor legal advice by his legal counsel was considered, but not found to have any merit.  The applicant was facing charges which clearly would have resulted in a punitive discharge, which likely would not have been upgraded by the ADRB.  If the applicant thought his NJP was unjust, he should not have accepted the NJP and demanded trial by court-martial at that time.  





4.  The applicant's overall service record and his service in Iraq were taken into consideration.  However, the applicant has established no basis for further relief.

5.  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 changing the applicant's narrative reason for separation, separation authority, or his RE code.

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
      
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)                                         AR20080008267



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ABCMR Record of Proceedings (cont)                                         AR20080008267



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