IN THE CASE OF:	

		BOARD DATE:	  30 September 2008

		DOCKET NUMBER:  AR20080011190 


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 reentry eligibility (RE) code of RE-4 be upgraded so that he may reenter active duty.

2.  The applicant states that his discharge was upgraded to a general discharge, so he is begging for another chance to serve his country.  He has grown a lot as a man since his discharge from the service.

3.  The applicant provides a copy of his separation document (DD Form 214).

CONSIDERATION OF EVIDENCE:

1.  The applicant's military personnel record shows he enlisted in the Regular Army on 28 September 2004.  He completed the necessary training and was awarded military occupational specialty (MOS) 42L (Administrative Specialist).

2.  The applicant was absent without (AWOL) during the period 12 March 2007 to 13 March 2007.

3.  On 13 April 2007, five charges was preferred against the applicant: 

     a.  Charge I, for four specifications for failing to go to his appointed place of duty, to wit: physical training (PT) formation, work area, work formation, and staff duty desk;

     b.  Charge II, for five specifications of willfully disobeying a lawful order, being disrespectful in language toward a noncommissioned officer, and disobeying a lawful order by wearing civilian clothes to the Post Exchange, Food Court, and staff duty desk; 

     c.  Charge III, for one specification for wrongful use of cocaine; and

     d.  Charge IV, for one specification for unlawfully pulling the hair of his spouse and striking her with his hands and feet.

4.  On 16 April 2007, the applicant's commander recommended pretrial confinement through the Office of the Staff Judge Advocate, who recommended that the charges and specifications be referred to a special court-martial for disposition of the charges.  The court was empowered to adjudge a Bad Conduct Discharge.  The Commanding General recommended approval.

5.  On 16 April 2007, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial.

6.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offense, that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and state law.  He also acknowledged that he understood that he may expect to encounter substantial prejudice in civilian life by reason of an Under Other Than Honorable Conditions Discharge.  He further understood that there is 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 or the Army Board of Correction of Military Records if he wished review of his discharge.  He realized that the act of consideration by either board did not imply that his discharge would be upgraded.

7.  The applicant submitted a statement apologizing for his behavior.  He stated, he believed the absence from his family played a significant role in his behavior.

8.  On 16 April 2007, the applicant's commander forwarded his recommendation for separation of the applicant to the separation approving authority.

9.  On 19 April 2007, the approving authority approved the applicant's request and directed the applicant be discharged in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations), Chapter 10, and his service be characterized as Under Other Than Honorable conditions.

10.  On 27 April 2007, the applicant was discharged from active duty in lieu of trial by court martial, for the good of the service, in accordance with Army Regulation 635-200, Chapter 10.  He was assigned a separation program designator code (SPD) code of KFS and an RE code of RE-4.  According to his DD Form 214, he had completed a total of 2 years, 6 months, and 22 days of Net Active Service This Period and accrued 8 days of time lost.

11.  Army Regulation 635-5-1 (Separation Program Designated Codes), Table
2-3, states that the SPD code KFS denote discharge for the good of the service in lieu of court-martial. 

12.  The Army Human Resources Command publishes a cross-reference table of SPD and RE codes.  This cross-reference table shows that an SPD code of KFS is assigned an RE code of RE-4.

13.  The applicant applied to the Army Discharge Review Board (ADRB) on 
30 September 2006.  On 18 December 2007, ADRB reviewed the applicant's record and determined that the applicant's characterization was too harsh, and recommended that his characterization be upgraded to general, under honorable conditions, but determined his reason for discharge was proper and equitable.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his RE-4 should be upgraded so that he may reenter the Army and serve his country.

2.  There is no evidence or indication that there was an error or injustice which caused the applicant to be discharged, nor has the applicant contended that there was an error or injustice in his discharge process.

3.  Since the applicant was properly discharged and appropriately assigned an RE code of RE-4 and an SPD code of KFS, there is no reason to change the correctly assigned code.  

4.  The applicant's statement was considered.  However, the applicant has already been given clemency by the ADRB when that Board upgraded his discharge.  To afford him additional clemency is not supported by his service record.

5.  In order to justify correction of a military record the applicant must satisfactorily show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit sufficient 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 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)                                         AR20080011190



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ABCMR Record of Proceedings (cont)                                         AR20080011190



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