IN THE CASE OF:	 

		BOARD DATE:	  2 December 2008

		DOCKET NUMBER:  AR20080012735 


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 be changed.

2.  The applicant states, in effect, he was told by his chain of command to go home and care for his family.  He also states that he knew he was gone for a long time, but Captain D____ told him everything he was doing was alright.  The applicant further states he would have returned to his unit any time he was asked, and he did return to his unit the day he found out he was in an absent without leave (AWOL) status.  The applicant concludes by stating he is requesting his RE Code be changed so that he can rejoin the Regular Army  (RA) and continue to serve his country and also support his family.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), with an effective date of 2 July 2007; DD Form 256A (Honorable Discharge Certificate), dated 17 April 2005; Dakotas - It Shall Be Done Certificate, undated; DA Form 31 (Request and Authority for Leave), dated 27 September 2006; Patient Addressograph, Progress Notes, dated
13-16 October 2006; Appalachian Regional Healthcare, Inc., Harlan-ARH Hospital, Harlan, Kentucky, Report of Operation, dated 17 November 2006;
DA Form 3881 (Rights Warning Procedure/Waiver Certificate), dated 21 May 2007; DA Form 2823 (Sworn Statement), dated 21 May 2007; and Company A, 601st Aviation Support Battalion, Combat Aviation Brigade, Fort Riley, Kansas, Memorandum For Record, dated 31 May 2007, subject:  Questions Asked To SPC [Applicant’s Last Name].


CONSIDERATION OF EVIDENCE:

1.  The applicant’s military service records show he enlisted in the U.S. Army Reserve (USAR) on 25 November 2002 and enlisted in the RA on 13 February 2003.  Upon completion of basic combat training and advanced individual training, he was awarded military occupational specialty MOS 92F (Petroleum Supply Specialist).  On 17 April 2005, the applicant was honorably discharged for the purpose of reenlistment in the RA on 18 April 2005.

2.  The applicant's military service records contain a DD Form 458 (Charge Sheet), dated 31 May 2007, that shows Captain Todd A. P_______, serving as Commander, Company A, 601st Aviation Support Battalion, Combat Aviation Brigade, 1st Infantry Division, Fort Riley, Kansas preferred charges against the applicant for violation of the Uniform Code of Military Justice (UCMJ), Article 86, with the specification that the applicant did, on or about 23 October 2006, without authority, absent himself from his unit and did remain so absent until he was apprehended on or about 16 May 2007.

3.  On 12 June 2007, the applicant submitted his voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  On 27 June 2007, the Major General serving as Commander,
1st Infantry Division and Fort Riley, Fort Riley, Kansas, approved the applicant’s request for discharge under the provisions of Army Regulation 635-200,
chapter 10; withdrew and dismissed the charge and specification forming the basis for the applicant’s request for discharge, effective the day following the applicant’s discharge; directed that the applicant be furnished a discharge under other than honorable conditions; and reduced the applicant to the lowest enlisted grade.

     a.  The applicant’s administrative separation action, in pertinent part, contains a copy of a memorandum from Captain Todd A. P_______, Commander, Company A, 601st Aviation Support Battalion, 1st Infantry Division, Fort Riley, Kansas, dated 1 November 2006.  This document shows that he notified the applicant's spouse that the applicant was AWOL from his unit since 23 October 2006, acknowledged that he understood the complications with her pregnancy, and urged her to advise the applicant to return immediately to military control.

     b.  The applicant’s administrative separation action, in pertinent part, contains a copy of a DA Form 2823 (Sworn Statement), dated 23 May 2007, executed by CPT Todd A. P_______, Commander, Company A, 601st Aviation Support Battalion, Combat Aviation Brigade, 1st Infantry Division, Fort Riley, Kansas.  The statement documents that he took command of the unit on 29 September 2006; describes the circumstances surrounding the applicant’s absence from his unit; the commander’s approval of an extension of the period of the applicant’s leave through 22 October 2006; the applicant’s unauthorized absence from his unit beginning on or about 23 October 2006; communications between the commander, the applicant, and the applicant’s spouse discussing the applicant’s AWOL status and need to return to his unit; and the applicant’s apprehension by civil authorities on 16 May 2007.
 
4.  The applicant’s military service records contain a DD Form 214 that shows he entered active duty on 13 February 2003 and was discharged, in the rank of private/pay grade E-1, under other than honorable conditions on 2 July 2007.  At the time, the applicant was credited with completing 3 years, 9 months, and 27 days net active service this period.  The DD Form 214 also shows that the separation authority and reason for his discharge was Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  Based on the authority and reason for separation, the applicant was assigned a Separation Program Designator (SPD) Code of “KFS” and an RE Code of “4.”

5.  The applicant's military service records are absent any evidence that he submitted a request for extension of leave beyond 22 October 2006, requested emergency leave, a compassionate reassignment, or hardship discharge based on personal reasons.

6.  There is no evidence the applicant submitted a DD Form 293 (Application for Review of Discharge or Separation from the Armed Forces of the United States) to the Army Discharge Review Board to request review of his discharge.

7.  In support of his application, the applicant provides the following documents.

     a.  DD Form 214 (Certificate of Release or Discharge from Active Duty), with an effective date of 2 July 2007, that was previously introduced and considered in this Record of Proceedings.

     b.  DD Form 256A (Honorable Discharge Certificate), dated 17 April 2005, that shows the applicant was honorably discharged from the U.S. Army on
17 April 2005.

     c.  A Dakotas - It Shall Be Done Certificate, undated, that shows the applicant was recognized for exceptional service during the week of 21 March 2005 to
27 March 2005 while deployed to Operation Iraqi Freedom.

     d.  DA Form 31 (Request and Authority for Leave), dated 27 September 2006, that shows Captain Scott M. D____, Commander, Company A, 601st Aviation Support Battalion, Fort Riley, Kansas, approved the applicant’s period of leave from 2 October 2006 to 11 October 2006.

     e.  Patient Addressograph, Progress Notes, dated 13-16 October 2006, that shows Doctor T. G_____ discussed the applicant’s spouse’s high-risk pregnancy with Captain Todd P______ and Captain P_______ and requested the applicant maintain his presence with his wife since she was more than 8 months into her pregnancy.

     f.  Appalachian Regional Healthcare, Inc., Harlan-ARH Hospital, Harlan, Kentucky, Report of Operation, dated 17 November 2006, that documents the applicant’s spouse’s delivery of a male child on 16 November 2006.

     g.  DA Form 3881 (Rights Warning Procedure/Waiver Certificate), dated
21 May 2007; DA Form 2823 (Sworn Statement), dated 21 May 2007; and Company A, 601st Aviation Support Battalion, Combat Aviation Brigade, Fort Riley, Kansas, Memorandum For Record, dated 31 May 2007, subject:  Questions Asked To SPC [Applicant’s Last Name].  These documents show, in pertinent part, that the applicant voluntarily responded to specific questions pertaining to his unauthorized absence from his unit.  The applicant’s answers indicate he thought he was on family medical leave; that he spoke with Captain P______, who told him to “take care of your family and go on with your life;” and that “the Army abanded (sic) [him].”  

8.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) prescribes policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons.  Chapter 10 of this Army regulation provides that a member who has committed an offense or offenses, the punishment for any of which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service.

9.  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.  It identifies the SPD code of “KFS” as the appropriate code to assign Regular Army enlisted Soldiers who are voluntarily discharged under the provisions of chapter 10, Army Regulation 635-200, based upon a request for discharge in lieu of trial by court-martial.



10.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program), in pertinent part, provides 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.  RE Code “4” applies to persons who have a non-waivable disqualification and may not request reentry.  The Army regulation further provides that, prior service Army personnel will be advised that RE codes may be changed only if they are determined to be administratively incorrect.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his RE Code should be changed so he may reenter military service and serve his country.

2.  The applicant’s request for change of the RE Code that he received in conjunction with his discharge from the U.S. Army and the applicant’s record of service during the period of enlistment under review were carefully considered.  
However, the applicant provides insufficient evidence to support his claim that he was in an authorized leave status and unaware he was in an AWOL status during the period 23 October 2006 through 16 May 2007.

3.  The applicant’s request for discharge under the provisions of chapter 10 of Army Regulation 635-200 for the good of the Service to avoid trial by court-martial was voluntary (emphasis added), administratively correct, and in compliance with applicable regulations.  In addition, the evidence of record shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time, all requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process.

4.  The evidence of record shows that the RE Code of “4” that the applicant received was appropriately assigned based on the authority and reason for his discharge.  Thus, the RE Code “4” assigned at the time of the applicant's discharge was, and remains, valid.  Therefore, there is no basis to change the applicant’s RE Code.

5.  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.



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)                                         AR20080012735



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ABCMR Record of Proceedings (cont)                                         AR20080012735



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