IN THE CASE OF:	  

		BOARD DATE:	        23 DECEMBER 2008

		DOCKET NUMBER:  AR20080016600 


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 general discharge be upgraded to an honorable discharge and that his reentry (RE) code be upgraded.

2.  The applicant essentially states that he was in a situation where he had to choose between his family and the military, and that his wife had a stroke and could not care for their children.  He also states, in effect, that he could not turn his back or choose his career over his wife and children.  He further states that he needs some honest people to review his case to really see and understand why he made a decision based on his family situation.  Additionally, he states that his career was cut short due to neglect, misunderstanding, and a lack of concern for his family's well-being.  He also states that he was court-martialed because he refused to return to Iraq.  Further, he states that he served 8 months in Iraq and was the first one on the bus and plane, and wanted to be one of the last to leave Iraq.  He continued by essentially stating that his rear detachment had no idea what danger they were going through, and that for them to say that he turned his back on his unit was not tasteful or respectful.  He also states, in pertinent part, that he served with pride and no fear for 6 years and gave his unit and battalion 3 years of nothing but selfless service and dedication, but that he never received any medals.  He further states that privates became sergeants before him, and at that time he was a specialist for 3 years with no promotion board appearance and was always looked over.  However, he states that he stayed loyal and dedicated to his unit.  He also states that since his discharge, he 


and his family have suffered, and that his home has been broken into and his car stolen.  He also essentially states that he is not looking for pity, but that he was court-martialed and given an RE code of 4 because of a misunderstanding, and that his RE code prevents him from reentering the military and obtaining a good job.  He further states that he wants to reenter the military so he can prove that he is a Soldier and leader, but most of all a concerned father and husband.  He also essentially asks that his case be reviewed, and that his discharge caused him to lose a career that he worked hard for and dedicated his life to.

3.  The applicant provides an undated self-authored statement in support of this application.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant’s military records show that he enlisted in the Regular Army on 28 January 1999.  He completed basic and advanced individual training and was awarded military occupational specialty (MOS) 77W (Water Treatment Specialist), which was later converted to MOS 92W with the same duty title.

3.  Although the complete facts and circumstances pertaining to the applicant’s discharge, i.e., his separation packet, are not contained in the available records, his military records did contain an undated memorandum which shows that the applicant's request for discharge in lieu of trial by court-martial was approved, and that he would be issued a general discharge certificate.  They also contained a properly constituted DD Form 214 (Certificate of Release of Discharge from Active Duty).  This DD Form 214 shows that the applicant was discharged under the provisions of Chapter 10 (Discharge in Lieu of Trial by Court-Martial), Army Regulation 635-200 (Active Duty Enlisted Administrative Separations).  Item 28 (Narrative Reason for Separation) of the applicant’s DD Form 214 has an 


entry of “In Lieu of Trial by Court-Martial”.  This document also shows that he was assigned a Separation Program Designator (SPD) code of “KFS,” and an 
RE code of “4.”

4.  On 4 June 2007, the Army Discharge Review Board denied the applicant's petition to upgrade his discharge.

5.  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.  A discharge under other than honorable conditions is normally considered appropriate; however, the separation authority may direct a general discharge if such is merited by the Soldier's overall record during the current enlistment.

6.  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 code 1 permits 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.

7.  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.  

8.  An SPD code of "KFS" applies to persons who are discharge 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.

9.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his general discharge should be upgraded to an honorable discharge, and that his RE code should be upgraded.
 
2.  The applicant's contention that he had to choose between his family and the military was considered.  However, other than mentioning that his wife allegedly had a stroke, he provided no evidence to support his contention, and he provided no evidence to show that he ever requested assistance from his chain of command or any external advocacy office such as the chaplain or the American Red Cross for any family issues he was having at the time.

3.  While the exact facts and circumstances surrounding the applicant's discharge proceedings are not available, presumably the applicant was charged with the commission of an offense or offenses punishable under the Uniform Code of Military Justice with a punitive discharge.  It is also appears that he voluntarily (emphasis added) requested discharge from the Army in lieu of trial by court-martial.  As he did not provide any evidence which shows that any requirements of law and regulation were not met, or that his rights were not fully protected throughout the separation process, regularity must be presumed in this case.  As a result, the applicant's discharge accurately reflects his overall record of service.

4.  The applicant desire to rejoin the military is commendable.  However, 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.

5.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.  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)                                         AR20080014911



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ABCMR Record of Proceedings (cont)                                         AR20080016600



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