IN THE CASE OF:	  

		BOARD DATE:	        11 DECEMBER 2008

		DOCKET NUMBER:  AR20080015726 


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 eligibility (RE) code on his DD Form 214 be changed to a more favorable code that will allow him to reenlist.

2.  The applicant states, in effect, that he was originally discharged under other than honorable conditions for the wrongful use of marijuana and the discharge was his fault.  It was also a decision that he has since regretted with great remorse.  He goes on to state that he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge with the hopes of re-entering the Army and the ADRB upgraded his discharge to a general discharge because it felt his discharge was too harsh when compared to his overall record of service. However, that board did not change his RE Code and he now desires the Board to change his RE code to a more favorable code that will allow him to again enlist to enter active duty.

3.  The applicant provides a copy of his DD Form 214.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the United States Army Reserve (USAR) in Louisville, Kentucky, on 18 January 2001 for a period of 8 years and training as an automated logistical supply specialist.  He completed his basic training at Fort Leonard Wood, Missouri, and his advanced individual training at Fort Lee, Virginia, before being released from active duty for training on 25 July 2001 and returning to his USAR unit.

2.  On 26 March 2002, he enlisted in the Regular Army for a period of 3 years as an automated logistical supply specialist and assignment to Fort Campbell, Kentucky.

3.  He deployed to Southwest Asia (SWA) from 2 March 2003 to 17 June 2003 and was advanced to the pay grade of E-3 on 1 May 2003.

4.  On 24 December 2003, charges were preferred against the applicant for the wrongful use of marijuana.

5.  On 12 January 2004, 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 (Personnel Separations), 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 declined to submit a statement in his own behalf.

6.  The appropriate authority approved his request on 3 February 2004 and directed that he be discharged under other than honorable conditions.

7.  Accordingly, he was discharged under other than honorable conditions on 11 February 2004 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 2 years, 10 months, and 5 days of total active service and was issued an RE code of "4."

8.  The applicant applied to the ADRB for an upgrade of his discharge.  The ADRB determined that given the applicant's overall record of service and his service in SWA, his discharge was too harsh.  The ADRB voted to upgrade his discharge to a general discharge but determined that his narrative reason for separation and RE code were correct and voted not to change them.  Accordingly, the applicant was issued a new DD Form 214 reflecting a general discharge.

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 (Active and Reserve Components Enlistment Program) 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, he 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.  The type of discharge directed (as upgraded by the ADRB), the reasons therefor, and his RE code appear to be appropriate considering the available facts of the case.
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.



      _________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)                                         AR20080015726



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ABCMR Record of Proceedings (cont)                                         AR20080015726



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