IN THE CASE OF:	  

		BOARD DATE:	        20 NOVEMBER 2008

		DOCKET NUMBER:  AR20080011629 


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 (RE) code of 4 be upgraded. 

2.  The applicant pleads for forgiveness for all of his wrongdoings and to allow a change to his RE code from a 4 to at least a 3.  He also states that he wants to be able to get back into the Army so badly that he and his wife traveled to Los Angeles, California to plead his case in front of the Army Discharge Review Board (ADRB).  He further states that he received a discharge under other than honorable conditions and was assigned an RE code of 4 after completing his
3-year enlistment contract with the United States Army.  He continued by stating that he received a letter from the ADRB which stated that his discharge had been upgraded to a general, under honorable conditions discharge, but that his RE code would remain at 4, which prevents him from being able to do what he wants to do most, which is to reenter the Army.

3.  The applicant provides Copy 6 (State Director of Veterans Affairs) and Copy 1 (Member) of his original DD Form 214 (Certificate of Release or Discharge from Active Duty), and a copy of his DD Form 214 that was prepared after the ADRB upgraded his discharge in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military records show that he enlisted in the Regular Army on 9 April 2002.  He completed initial entry training and was awarded military occupational specialty 19K (M1 Armor Crewman).  He then departed for a tour of 

duty in Germany in September 2002 and he was assigned to the 63rd Armor Regiment.  He was advanced to private (PV2)/E-2 on 14 March 2003 and to private first class (PFC)/E-3 on 1 July 2003.
 
2.  On 9 December 2003, the applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for unlawfully choking a PV2 on or about 10 October 2003 in violation of Article 128 (Assault) of the UCMJ.  His punishment consisted of reduction in rank and pay grade from PFC to PV2, forfeiture of $301.00 pay, and extra duty and restriction for 6 days.

3.  The applicant served in Iraq from 14 February 2004 to 23 February 2005.  He was awarded the Army Commendation Medal for his service in Iraq and the Combat Action Badge for actively engaging or being engaged by the enemy on 15 November 2004.

4.  On 31 May 2005, the applicant voluntarily requested discharge under the provisions of Chapter 10 (Discharge in Lieu of Trial by Court-Martial), Army Regulation 635-200 (Active Duty Enlisted Administration Separations) in lieu of trial by court-martial after charges were preferred against him for willfully disobeying lawful commands from his superior commissioned officer on or about 27 April 2005 and 10 May 2005, violating a lawful general regulation by wrongfully driving a privately owned vehicle in Germany without a United States Forces certification of license, and unlawfully striking his wife at the time on or about 8 May 2005 by pushing her forcefully against a wall.  He acknowledged he understood that he could request discharge in lieu of trial by court-martial because charges were preferred against him under the UCMJ which authorized the imposition of a punitive discharge.

5.  On 17 June 2005, the proper approval authority approved the applicant’s discharge under the provisions of Army Regulation 635-200, Chapter 10, and directed that he receive an Under Other Than Honorable Conditions Discharge Certificate.

6.  On 25 June 2005, the applicant was discharged under the provisions of Army Regulation 635-200, Chapter 10.  He was issued a discharge under other than honorable conditions.  Item 28 (Narrative Reason for Separation) of his 
DD Form 214 has an entry of “In Lieu of Trial by Court-Martial.”  His DD Form 214 also shows that he was assigned a Separation Program Designator (SPD) code of “KFS,” and an RE code of “4.”



7.  On 11 March 2008, the ADRB elected to upgrade the applicant's under other than honorable conditions discharge to a general discharge because of his service in Iraq, but determined that the reason for his discharge was proper and equitable and voted not to change it.

8.  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 trIal by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

9.  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. 

10.  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), Army Regulation 635-5-1 (Separation Documents) establishes RE Codes to be assigned for each SPD.  

11.  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.

12.  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.  This 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 that his RE code of 4 should be upgraded. 

2.  The fact that the ADRB elected to upgrade the characterization of his service because of his service in Iraq was noted.  However, it does not change the reason for the applicant's discharge, which was his voluntary request to be discharged in lieu of a trial by court-martial.

3.  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.

4.  The evidence of record shows that the applicant accepted NJP under Article 15 of the UCMJ for unlawfully choking a fellow Soldier.  It also shows that the applicant was charged with the commission of offenses punishable under the UCMJ, and that he voluntarily (emphasis added) requested discharge from the Army in lieu of trial by court-martial.  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.

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 granting relief to the applicant in this case.

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.



      ________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)                                         AR20080011629



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ABCMR Record of Proceedings (cont)                                         AR20080011629



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