IN THE CASE OF:	

		BOARD DATE:	  19 February 2009

		DOCKET NUMBER:  AR20080018028 


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, correction of appropriate military records to show a reentry eligibility (RE) code which would allow enlistment.

2.  The applicant states he wants to rejoin the Army.  The applicant explains that he served 3 months in confinement  and was told that he would be discharged with either a general discharge or under provisions of Army Regulation 635-200, chapter 10, and receive a reenlistment code that would allow him to enlist in the Army two years after his discharge.

3.  The applicant provides no additional documentary evidence in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Army Reserve on 
28 June 1996.  He completed basic combat and advanced individual training and was awarded the military occupational specialty of construction equipment repairer.  He was transferred to the U.S. Army Reserve Control Group (Annual Training) on 10 March 1998 for unsatisfactory participation.  He was transferred from the U.S. Army Reserve Control Group (Reinforcement) to a troop program unit on 31 October 2001.  The applicant's records show he enlisted in the Regular Army for 3 years on 23 February 2004.  The highest rank he attained while serving on active duty was private first class/pay grade E-3.

2.  On 7 June 2005, the applicant was charged with three specifications of failing to go to his appointed place of duty, one specification of disobeying an order from a noncommissioned officer, one specification of use of disrespectful language to a superior noncommissioned officer, two specifications of damaging property, one specification of wrongfully using cocaine, one specification of wrongfully using methamphetamines, and one specification of assaulting a noncommissioned officer.  On 20 June 2005, the applicant was charged with a second specification of wrongfully using methamphetamines.

3.  On 29 July 2005, the applicant voluntarily requested discharge in lieu of court-martial under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10 because of charges that had been preferred against 
him under the Uniform Code of Military Justice, some or all of which authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged that he was making the request of his own free will and that he had been advised of the implications that are attached to it.  He acknowledged that by submitting the request for discharge that he was guilty of the charge against him or of (a) lesser included offense(s) therein contained which also authorized the imposition of a bad conduct discharge or dishonorable discharge.  He indicated that under no circumstances did he desire further rehabilitation, for he had no desire to perform further military service.

4.  The applicant acknowledged that he had consulted with counsel for consultation who fully advised him of the nature of his rights under the Uniform Code of Military Justice.  The applicant further acknowledged he understood that if his discharge request was approved, he may be discharged under conditions other than honorable and that he would be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration (VA) [now known as the Department of Veterans Affairs], and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

5.  He also acknowledged that there is no automatic upgrading or review by any Government agency of a less than honorable discharge and that he must apply to the Army Discharge Review Board or the Army Board for Correction of Military Records if he wished a review of his discharge.  He further acknowledged that the act of consideration by either board did not imply that his discharge would be upgraded.

6.  The unit and intermediate commanders recommended approval of the applicant's request for discharge, and on 12 August 2005 the applicant's request for discharge in lieu of trial by court-martial was approved by the appropriate authority.
7.  Accordingly, on 19 August 2005 the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, Discharge in Lieu of Trial by Court-Martial.  The DD Form 214 the applicant was issued shows his service was characterized as under other than honorable conditions.  He was assigned a separation program designator (SPD) of KFS and an RE code of RE-4.

8.  On 13 October 2006, the Army Discharge Review Board denied the applicant's request for an upgrade of his under other than honorable conditions discharge to a general (under honorable conditions) discharge.

9.  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 and processing into the Regular Army and the U.S. 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.  Table 3-1 of the regulation states that RE-4 applies to persons separated from their last period of service with a nonwaivable disqualification.

10.  The SPD/RE codes cross-reference table states that Army Regulation 
601-210 determines Regular Army and U.S. Army Reserve reentry eligibility and provides regulatory guidance on the RE codes.  This table provides guidance for determining the RE code for Active Army Soldiers, as well as Reserve Component Soldiers separated for cause and physical disability.  The table shows that the SPD KFS is to be assigned an RE-4.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was discharged under the provisions of Army Regulation 
635-200, chapter 10.  In order to be discharged under chapter 10, the applicant admitted to guilt and voluntarily requested discharge in lieu of trial by court-martial.

2.  While the applicant requested his RE code be changed, it is necessary to consider whether his discharge should be upgraded, since the RE code is based on the reason for discharge.

3.  Based on the applicant's extensive record of indiscipline and misconduct, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either a general or an honorable discharge.

4.  In the absence of evidence to the contrary, it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

5.  There is no evidence in the available record, and the applicant has provided no evidence, that shows irregularity in the assignment of his RE code.  The applicant was disqualified from reenlistment based on misconduct and the disqualification is non-waivable under Army Regulations.

6.  The SPD cross-reference table states that the applicant was to be assigned an RE-4 based on the reason for his discharge.  As such, his RE code of RE-4 was properly assigned to him.

7.  While the applicant's desire to enlist in the Army is commendable, there is no basis for changing a properly assigned RE code.

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)                                         AR20080018028



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ABCMR Record of Proceedings (cont)                                         AR20080018028



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