IN THE CASE OF:	  

		BOARD DATE:	        04 DECEMBER 2008

		DOCKET NUMBER:  AR20080014820 


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 that his Reentry (RE) Code be changed from a "4" to a "2" or "3."

2.  The applicant states the RE Code of "4" is administered to Soldiers who opt out of overseas deployment during their first term or the worst offenders deemed by the Uniformed Code of Military Justice (UCMJ) and he does not fall into either category.  He goes on to state that he was charged but never convicted, that he was not considered a flight risk and never spent a day in the stockade.  Furthermore, it was not deemed necessary to separate him from his family because he was not a safety liability and his RE Code was issued on the basis of accusation and not by merit.

3.  The applicant provides no additional documents with his application.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the Board change the applicant's Narrative Reason for Separation and his RE Code to a more favorable code.

2.  Counsel states, in effect, that the applicant's DD Form 149 sufficiently amplifies the applicant's contentions for the Board to make an equitable review of his issues.

3.  Counsel provides no additional documents with her letter of support.

CONSIDERATION OF EVIDENCE:

1.  The applicant was born in Petionville, Haiti on 10 March 1973 and enlisted in the Regular Army in Brooklyn, New York on 17 June 2002, for a period of 4 years and training as a health care specialist.  He was married with four dependents at the time.

2.  He completed his basic combat training at Fort Jackson, South Carolina and his advanced individual training (AIT) at both Fort Sam Houston, Texas and Walter Reed Army Medical Center before being transferred to Korea, where he served a 1-year unaccompanied tour.

3.  He was advanced to the pay grade of E-4 on 1 March 2004 and on 6 February 2006, while stationed at Fort Lee, Virginia, charges were preferred against him for unlawfully striking his 10 year old daughter (battery on a child under the age of 16) on her body multiple times, from her shoulders to her ankles, with a tree branch.

4.  On 17 March 2006, after consulting with defense counsel, the applicant submitted a request for discharge for the good of the service, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  In his request he indicated that he understood the charges that had been preferred against him, that he was making the request of his own free will, without coercion from anyone and that he was aware of the implications attached to his request.  He also admitted that he was guilty of the charges against him or of lesser included offenses which authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged that he understood that he could receive a discharge under other than honorable conditions and that he might be deprived of all benefits as a result of such a discharge.  He further elected to allow his defense counsel to submit a statement in his own behalf whereas his counsel requested that the court-martial convening authority handle the matter in a manner not involving the courts and that the applicant be given at least a general discharge.

5.  The applicant's immediate chain of command all recommended that the applicant receive at least a general discharge.

6.  On 11 April 2006, the appropriate authority (a major general) approved the applicant's request and directed that he be discharged under other than honorable conditions.


7.  Accordingly, the applicant was discharged under other than honorable conditions on 21 April 2006, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 3 years, 9 months and 28 days of total active service and was issued an RE Code of "4."

8.  In January 2008, the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge in order to return to active duty service.  He asserted at that time that his service record spoke for itself and contended that the charges brought against him were exaggerated and without proof or consideration to culture and family dynamics which played a significant role.  The ADRB, after considering all of the available evidence and arguments submitted by the applicant, determined that given the applicant's record of faithful and honorable service, the characterization of his service was too harsh and voted to upgrade his discharge to a general discharge on 15 July 2008.  However, the ADRB also determined that the reason and authority for his discharge was proper and voted not to change it.  Accordingly, his discharge was upgraded to a general discharge.  His RE Code remained as a "4."

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the 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 charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against them or of a lesser included offense which authorizes the imposition of a bad conduct or dishonorable discharge and they must indicate that they have been briefed and understand the consequences of such a request as well as the discharge they might receive.  A discharge under other than honorable conditions is normally considered appropriate.  

10.  Pertinent Army regulations provide 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.  Army Regulation 601-210 covers eligibility criteria, policies, and procedures for enlistment processing into the Regular Army and the USAR.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of armed forces RE codes.

11.  RE-4 indicates that a person is not qualified for continued Army service by virtue of being separated from the service with a nonwaivable disqualification.  The applicable regulations direct that an RE Code of “4” be issued for an SPD of “KFS,” which indicates separation in lieu of trial by court-martial.

DISCUSSION AND CONCLUSIONS:

1.  Notwithstanding the action of the ADRB to upgrade the applicant’s discharge under other than honorable conditions to a general discharge, the ADRB did not change the narrative reason for his discharge.  

2.  The applicant was issued an RE Code of “4” based on the narrative reason for his discharge, which was based on his approved request for a discharge in lieu of trial by court-martial.  The applicant has failed to show through the evidence submitted and the evidence of record that his RE Code is incorrect or that there is sufficient reason to warrant a change of his narrative reason for separation and RE Code.

3.  After being afforded the opportunity to assert his innocence before a trial by court-martial, the applicant voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his records.  In doing so he admitted guilt to the charges against him.

4.  Accordingly, his contention that the charges were never proven or that they had no merit are not sufficient to mitigate relief in this case.

5.  The type of discharge directed (as upgraded by the ADRB), the reasons therefore, and his RE Code appear to be appropriate considering the available facts of the case.
  
6.  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.




      _______ _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)                                         AR20080014820



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ABCMR Record of Proceedings (cont)                                         AR20080014820



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