IN THE CASE OF:	  

		BOARD DATE:	        15 October 2008

		DOCKET NUMBER:  AR20080012462 


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 reconsideration of his earlier request for an upgrade of his discharge and correction of his Reentry (RE) Code from RE-4 to RE-1 so he may reenter the Army.

2.  The applicant states that after serving 29 months in the Regular Army and nearly 12 months in the U.S. Army Reserve, he made a mistake, and should have been allowed to stay in the Army.  He further adds that as a matter of equity, he should now be given a second chance.

3.  The applicant provided a self-authored statement, dated 3 June 2008, a statement from his mother, dated 13 March 2008, and an undated photograph of himself in desert fatigues, in support of his application.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20070006995, on 14 August 2007.

2.  The applicant submitted a copy of a self-authored statement, dated 3 June 2008, a statement from his mother, dated 13 March 2008, and a photograph of himself in desert fatigues, which were not previously reviewed by the ABCMR; therefore, they are considered new evidence and as such warrants consideration by the Board.
3.  The applicant's records show he enlisted in the Regular Army for a period of 4 years on 10 June 1997.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11C (Indirect Fire Infantryman).  The highest rank/grade he attained during this period of military service was private first class (PFC)/E-3.

4.  The applicant’s records show he was awarded the National Defense Service Medal, the Armed Forces Expeditionary Medal, and the Army Service Ribbon.  His records do not reveal any special acts or significant achievements during this period of military service.

5.  On 6 October 1999, the applicant departed his unit in an absent without leave (AWOL) status and was subsequently dropped from the Army rolls on 5 November 1999.  He remained in a deserter status until he surrendered to military authorities at Fort Stewart, Georgia, on 19 January 2003. 

6.  On 4 March 2003, court-martial charges were preferred against the applicant for one specification of being AWOL during the period from on or about 6 October 1999 until on or about 21 January 2003.  

7.  On 19 March 2003, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation (AR) 635-200 (Personnel Separations).

8.  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 discharge or a discharge under other honorable conditions.  He further acknowledged he understood that if the 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. 

9.  On 20 March 2003, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of AR 635-200 and directed he receive an Under Other Than Honorable Conditions Discharge Certificate and be reduced the lowest enlisted grade.  On 2 April 2003, the applicant was accordingly discharged.  The DD Form 214 he was issued at the time of his discharge shows he was discharged for the good of the service with a character of service of under other than honorable conditions.  This form further confirms the applicant had completed a total of 2 years, 5 month, and 19 days of creditable active military service and had 1,201 days of lost time due to AWOL.  Additionally, Item 27 (Reentry Code) of the applicant's DD Form 214 shows the entry "4." 

10.  On 9 July 2004, the Army Discharge Review Board (ADRB) denied the applicant’s petition for an upgrade of his discharge. 

11.  In his self-authored letter, dated 3 June 2008, the applicant states that he made a mistake by going AWOL due to family problems and that his offense was a single, isolated offense, during a period of over nearly 30 months of honorable service.  He also adds that he was good Soldier with high aptitude and physical fitness scores and that he remains in top shape today.  He goes on to say that he was told he would be allowed to return to the Army if he stayed out of trouble.  He concludes that he loves his country and lives by the Army values and pleads to the Board to give him a second chance.

12.  In her letter of support, dated 13 March 2008, the applicant's mother comments some family difficulties that required her son to find a job to help support the family.  She also states that she believes her son qualifies for an upgrade to a general discharge by reason of equity.  She concludes that her son is the most law abiding person she has known and has never been in trouble with the law, and appeals to the Board to give her son a second chance.

13.  AR 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.

14.  AR 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.


15.  AR 635-200 states, in pertinent part, 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.  AR 601-210 (Regular Army and Army Reserve Enlistment Program), covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the US Army Reserve.  Table 3-1 included a list of the Regular Army Reenlistment Eligibility Codes (RE codes):

	a.  RE–1, applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army.  They are qualified for enlistment if all other criteria are met.

	b.  RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable.  They are ineligible unless a waiver is granted. 

	c.  RE-4 applies to Soldiers separated from last period of service with a nonwaivable disqualification.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s records show he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of AR 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

2.  The evidence of record further confirms that the applicant’s RE code was assigned based on the fact that he was separated under the provisions of chapter 10 of AR 635-200, in lieu of trial by court-martial.  The RE code associated with this type of discharge is RE-4.  Therefore, the applicant received the appropriate RE code associated with his discharge.

3.  The Army Board for Correction of Military Records (ABCMR) does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the RE code is in error or unjust.  The applicant did not submit evidence that would satisfy that requirement.  Therefore, the applicant is not entitled to relief. 

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 to amend the decision of the ABCMR set forth in Docket Number AR20070006995, dated 14 August 2007.


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      _______ _   _______   ___
               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)                                         AR20080012462



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ABCMR Record of Proceedings (cont)                                         AR20080012462



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