IN THE CASE OF:	 

		BOARD DATE:	  18 December 2008

		DOCKET NUMBER:  AR20080010418 


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 be changed from RE code 4 to RE code 1.

2.  The applicant states that he requests the upgrade so he may enlist in the Army.  He believes the record to be in error.  He was absent without leave (AWOL) for 7 days, but Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 10, requires AWOL of 30 days or more.  He went AWOL as a response to an incident of adultery between a member of his platoon and his spouse at the time.  Because of the incident, he requested reassignment.  When his request was ignored, he went AWOL.  The Army Discharge Review Board (ADRB) upgraded his discharge, but no action was taken concerning upgrading his RE code.  Since being discharged, he has greatly matured and learned from the mistakes he made while on active duty.

3.  The applicant provides his re-issued DD Form 214 (Certificate of Release or Discharge from Active Duty); page one of the ADRB Case Report and Directive; three training course diplomas (one dated 8 August 2006, one dated 25 October 2006, and one dated 8 January 2007); a Student of the Month certificate, dated May 2006; a Certified Phlebotomy Technician certificate of completion; a record of credit hours completed; and four letters of recommendation (one dated 7 February 2007, one dated 12 February 2007, one dated 4 June 2008, and one undated).



CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 15 May 2004.  He completed basic training and advanced individual training and was awarded military occupational specialty 11B (Infantryman).

2.  The applicant was AWOL from 15 February 2005 through 22 February 2005.

3.  The court-martial charges and most of the applicant's discharge packet are not available.

4.  On 4 November 2005, the appropriate authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, and directed his discharge be characterized as general under honorable conditions.  However, apparently through an administrative error, the Army issued the applicant a DD Form 214 reflecting an under other than honorable characterization of service.

5.  On 21 November 2005, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service.  He had completed 1 year, 6 months, and 4 days of creditable active service.  His DD Form 214 does not reflect his lost time.  He was given a separation code of KFS (voluntary discharge under the provisions of Army Regulation 635-200, chapter 10, discharge in lieu of trial by court-martial) and an RE code of 4.

6.  On 29 February 2008, the ADRB upgraded the applicant's discharge to honorable but determined that the reason for his discharge was proper and equitable.  However, apparently because of errors made in the ADRB proceedings the Army issued the applicant a new DD Form 214 reflecting a general discharge.

7.  Army Regulation 635-200 (Personnel Separations) 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 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.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.



8.  Army Regulation 635-200, paragraph 10-7, states the separation authority will be a commander exercising general court-martial jurisdiction or higher authority.  However, authority to approve discharges may be delegated to the commander exercising special court martial convening authority over the Soldier in cases in which all of the following apply to the Soldier.  He/she (a) has been AWOL for more than 30 days, (b) has been dropped from the rolls of his/her unit as absent in desertion, (c) has been returned to military control, (d) currently is at the personnel control facility, and (e) is charged only with AWOL for more than 30 days.

9.  The Manual for Courts-Martial, United States, 2005 edition, states the maximum punishment for an AWOL of more than 3 days but not more than 30 days does not include a punitive discharge.

10.  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.

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

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

DISCUSSION AND CONCLUSIONS:

1.  The court-martial charge sheet and, except for the approval document, the applicant's discharge packet are not available.

2.  The applicant contended that he was AWOL for 7 days, and he also contended that Army Regulation 635-200, chapter 10, requires AWOL of 30 days or more to be eligible for discharge under this provision of the regulation.  Army Regulation 635-200 does state that a chapter 10 discharge requires the Soldier be charged with an offense for which the punishment includes a punitive discharge.



3.  It is noted that the Manual for Courts-Martial does not authorize a punitive discharge for an AWOL of less than 30 days.  However, in the absence of the court-martial charge sheet it is presumed that the applicant was not charged solely with being AWOL for 7 days.  The AWOL occurred in February and the chapter 10 was approved in November.  This would have been an extraordinary delay to dispose of charges consisting solely of a 7-day AWOL.

4.  Unless the applicant can provide the court-martial charge sheet and his discharge packet, it is presumed that he was properly discharged under the provisions of Army Regulation 635-200, chapter 10.  Therefore, he was properly given a separation code of KFS and properly given an RE code of 4.

5.  Evidence shows that the applicant’s records contain an administrative error which does not require action by the Board.  Therefore, administrative correction of the applicant’s records will be accomplished by the Case Management Support Division (CMSD), St. Louis, Missouri, as outlined by the Board in paragraph 2 of the Board Determination/Recommendation section below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ____X____  ___X_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board determined that an administrative error in the records of the individual concerned should be corrected.  Therefore, the Board requests that the 


CMSD-St. Louis administratively correct the records of the individual concerned by reissuing to him a DD Form 214 showing the Army Discharge Review Board upgraded his discharge to fully honorable.



      __________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)                                         AR20080010418



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ABCMR Record of Proceedings (cont)                                         AR20080010418



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