IN THE CASE OF:	  

		BOARD DATE:	        20 NOVEMBER 2008

		DOCKET NUMBER:  AR20080014195 


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 to an RE code of 3 or better. 

2.  The applicant essentially states that his discharge was found to be inequitable and unjust based upon his service to the Army and multiple deployments to Iraq.

3.  The applicant provides, in support of his application, a letter, dated
19 December 2007, from the Army Discharge Review Board (ADRB) which essentially informed him that his under other than honorable conditions discharge was upgraded to a general, under honorable conditions discharge; and two copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty) that were prepared after the ADRB upgraded his discharge.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military records show that he enlisted in the Regular Army on 23 August 2001.  He completed initial entry training at Fort Benning, Georgia and was awarded military occupational specialty 11B (Infantryman).  He then remained at Fort Benning for his initial permanent duty assignment.  

2.  Between 14 June 2004 and 14 December 2004, the applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) on three occasions.  His offenses included failure to report; willfully disobeying a lawful order from his superior noncommissioned officer 
(NCO); and stealing a modular integrated communications helmet (MICH) and modular lightweight load-carrying equipment (MOLLE) vest with M203 pouches of a value of approximately $400.00, which was the property of an NCO.  Collectively, his punishment for these three offenses consisted of two reductions in rank; forfeiture of $1,037.00; extra duty for 32 days, 15 days of which was suspended; and 32 days of restriction, 15 days of which was suspended.

3.  The applicant's Enlisted Record Brief essentially shows that he served in Iraq from 15 January 2005 to 10 January 2006.  During that time, the applicant twice accepted NJP under Article 15 of the UCMJ.  His offenses included absenting himself from his appointed place of duty on or about 19 April 2005 and remaining so absent until on or about 30 May 2005, and willfully disobeying a lawful order from his superior NCO.  Collectively, his punishment for these two offenses consisted of one reduction in rank, extra duty for 59 days, and restriction for
59 days.

4.  After returning to Fort Benning, Georgia, the applicant again accepted NJP under Article 15 of the UCMJ on 8 September 2006 for failing to go at the time prescribed to his appointed place of duty on or about 17 August 2006.  His punishment for this offense was 14 days of extra duty and 14 days of restriction.

5.  On 3 November 2006, 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 for wrongfully using marijuana between on or about 8 August 2006 and 8 September 2006; and wrongfully using marijuana, cocaine 
3,4-methylenedioxyamphetamine (MDA) – a schedule I controlled substance, and methylenedioxymethamphetamine (MDMA), commonly known as Ecstasy – a schedule I controlled substance between on or about 25 August 2006 and 
25 September 2006.  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. 

6.  On 30 November 2006, 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.  

7.  On 22 December 2006, 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.”

8.  On 18 December 2007, the ADRB elected to upgrade the applicant's under other than honorable conditions discharge to a general, under honorable conditions discharge, but determined that the reason for his discharge was proper and equitable and voted not to change it.

9.  The applicant essentially stated that his discharge was found to be inequitable and unjust based upon his service to the Army and multiple deployments to Iraq.

10.  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 trail by court-martial.  An under other than honorable conditions discharge is normally considered appropriate.

11.  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. 

12.  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), AR 635-5-1 (Separation Documents) establishes RE Codes to be assigned for each SPD.  

13.  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.  An RE code of 4 indicates that the applicant was separated from his last period of service with a disqualification which cannot be waived and is ineligible for reenlistment.

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 on six occasions for multiple offenses of the UCMJ.  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)                                         AR20080014195



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ABCMR Record of Proceedings (cont)                                         AR20080014195



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