IN THE CASE OF:	  

		BOARD DATE:	  10 March 2009

		DOCKET NUMBER:  AR20080016661 


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 from RE Code 4 to RE Code 3, or possibly 2, for the purpose of reenlistment.  

2.  The applicant states, in effect, that he has learned his lesson and he wants a second chance to prove himself.  He took a case for his younger brother, trying to get him lesser time, not knowing he would get locked up and considered absent without leave (AWOL).  He was doing what he was trained to do, protect and serve.  Even though he accepted the punishment, he believes he should be allowed to come back and serve his country.   

3.  In support of his application, the applicant provides copies of his award orders for the Parachutist Badge and his DD Form 214 (Certificate of Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.   The applicant’s military records show he enlisted in the Army Delayed Entry Program on 16 July 2002.  He enlisted in the Regular Army (RA), in pay grade 
E-1, on 1 October 2002.  He completed basic and advanced individual training and was awarded military occupational specialty 13R, Field Artillery Firefinder Radar Operator.  He was advanced to pay grade E-2 on 1 April 2003.

2.  The applicant submits a copy of Permanent Orders Number 275-2982, dated 2 October 2003, that shows he was awarded the Parachutist Badge upon completion of airborne training.
3.  A DD Form 616 (Report of Return of Absentee), dated 5 February 2007, shows the applicant was reported AWOL on 18 August 2003.  

4.  On 26 April 2005, A DD Form 458 (Charge Sheet) was prepared by the Commander, Delta Company, 1st Battalion, 507th Parachute Infantry Regiment, 11th Infantry Regiment, Fort Benning, Georgia charging the applicant with one specification of being AWOL from 18 August 2003 to an unspecified date.

5.  The applicant was apprehended and returned to military control on 24 January 2007.

6.  On 27 September 2007, after consulting with counsel, the applicant voluntarily requested discharge for the good of the service, under the provisions of Army Regulation 635-200, Chapter 10.  In doing so, he acknowledged that he might be discharged with a bad conduct or dishonorable discharge.  He also stated that under no circumstances did he desire further rehabilitation, for he had no desire to perform further military service.  He also acknowledged that he could be discharged under conditions other than honorable, as a result of the issuance of such a discharge, he could be deprived of many or all Army benefits, and he could be ineligible for many or all benefits administered by the Department of Veteran's Affairs.  He elected not to submit a statement in his own behalf.

7.  On 6 November 2007, the applicant's unit commander recommended his request be approved and he be issued a discharge under other than honorable conditions.  The unit commander stated that the applicant had become disillusioned with the military and retention of the applicant was not in the best interest of the Army.  

8.  On 4 December 2007, the appropriate authority approved the applicant's request for discharge for the good of the service and directed the issuance of a general discharge, under honorable conditions.  

9.  The applicant was discharged on 11 January 2008, in pay grade E-2, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service, in lieu of court-martial.  He was credited with 1 year, 10 months, and 4 days of total active service.  He was also credited with lost time from 18 August 2003 to 24 January 2007 due to being AWOL.

10.  Item 26 (Separation Code) of the applicant's DD Form 214 shows the entry "KFS” and Item 27 (RE Code) shows the entry "RE-4."



11.  Army Regulation 635-200 (Enlisted Separations), sets forth the basic authority for separation of enlisted personnel.  Chapter 10 of this regulation provides in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge could, at any time after the charges have been preferred, submit a request for discharge for the good of the service, in lieu of trial by court-martial.  An under other than honorable conditions discharge 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.

12.  Army Regulation 601-210 (Active and Reserve Components Enlistment
Program), covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the Reserve.  The regulation 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.  Chapter 3 of this regulation prescribes basic eligibility for prior service applicants for enlistment.  This chapter includes a list of Armed Forces reentry codes, including RA RE Codes.  Chapter 3-10, also provides that RE Codes could be changed only if they are determined to be administratively incorrect.  Applicants who have corrected RE Codes will be processed for a waiver at their request, if otherwise qualified, and a waiver is authorized.  

13.  An RE Code of “4” applies to persons separated from the last period of service with a non-waivable disqualification.  Members separated with an RE Code of “4” are ineligible for enlistment.  An RE Code of “3” applies to persons not qualified for continued Army service, but the disqualification is waivable.  An RE Code of "2" applies to persons separated prior to the effective date of this regulation (7 June 2007) and this code will not be used. 

14.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes), prescribed the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPD code to be used for these stated reasons.  The regulation shows that the SPD of “KFS" as shown on the applicant’s DD Form 214 is appropriate for voluntary discharge when the narrative reason for discharge is a “In Lieu of Trial by Court-Martial” and the authority for discharge is Army Regulation 635-200, Chapter 10. 

15.  The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers separated for cause.  It also shows SPD codes with their corresponding RE code.  The Soldier’s file and other pertinent documents must be reviewed in order to make a final determination.  The SPD code of “KFS” has a corresponding RE Code of “4.”

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to a change of his RE Code 4.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request and has not shown error or inequity to justify the relief he now seeks.  

2.  The applicant contends that he was considered AWOL, but got locked up as a result of helping out his younger brother.  The evidence shows he was reported AWOL on 18 August 2003 and returned to military control on 24 January 2007.   After consulting with counsel, he requested discharge in lieu of facing a court-martial.  He stated, in effect, that he did not desire further rehabilitation, had no desire to perform further military service, and was making the decision of his own free will.  

3.  The evidence also shows the applicant was discharged on 11 January 2008, under the provisions of Army Regulation 635-200, Chapter 10.  He was assigned an RE Code of "4."  He contends that his RE Code should be changed because he would like to reenter the Service.  However, his assigned RE Code is consistent with the reason for separation.  The applicant has failed to show through the evidence submitted with his application or the evidence of record that his assigned RE Code is in error or unjust.  Therefore, he has established no basis for changing his existing RE Code.

4.  The evidence of record also confirms the applicant’s discharge processing was accomplished in accordance with applicable regulations and that the type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20080016661



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ABCMR Record of Proceedings (cont)                                         AR20080016661


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