IN THE CASE OF:	  

		BOARD DATE:	        31 MARCH 2009

		DOCKET NUMBER:  AR20080018682 


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 his military records to show a reentry (RE) code which would allow him to enlist in the U.S. Army.  In effect, this constitutes a request for removal or waiver of those disqualifications which preclude enlistment.

2.  The applicant states that he believes he was unjustly punished for a communication problem that started with the military doctors and was passed on to him without being properly submitted through his chain of command and not being fully understood by all who were involved.

3.  The applicant provides in support of his application, a letter addressed to him from the Department of the Army Review Boards Agency, Chief, Management Division dated 4 December 2008; a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty); and the applicant's statement in the form of an electronic mail addressed to "The Whom it may concern" explaining the events that he contends led to his discharge.

CONSIDERATION OF EVIDENCE:

1.  On 20 November 2006, the applicant enlisted in the Regular Army (RA) in Newark, New Jersey, for 3 years and 18 weeks, in the pay grade of E-1.  




2.  On 5 January 2007 the applicant went absent without leave (AWOL) and he remained absent in desertion status until he was apprehended by civil authorities at Wildwood, New Jersey, and subsequently returned to military control on          5 October 2007.

3.  On 18 October 2007, the applicant was notified that charges were pending against him for being AWOL.  He acknowledged receipt of the notification in writing on the same day and, after consulting with counsel, he submitted a voluntary request for discharge under the provisions of Army Regulation
635-200 (Active Duty Enlisted Administrative Separations), chapter 10, for the good of the service - in lieu of trial by court-martial.

4.  The appropriate separation authority approved the request for discharge on
8 November 2007 and directed the issuance of an under other than honorable conditions discharge.  Accordingly, on 5 December 2007, the applicant was discharged under other than honorable conditions, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.

5.  The DD Form 214 that he was furnished at the time of his discharge shows that he had 3 months and 16 days of net active service; that he was furnished a separation code of "KFS" (in lieu of trial by court-martial); and that he was furnished an RE code of 4.

6.  In the statement that the applicant submitted in support of his application, he asserts that he was unjustly discharged and furnished an RE code of 4.  He states that during basic combat training he aggravated his knee (a preexisting injury) and that he "saw" many military doctors.  He states that he was told that he would be discharged and that the paperwork to discharge him was started by doctors at the medical facility.  He states that he was told "it would be ok to wait for my discharge because of my current knee injury."  The applicant states that he went home for Christmas exodus and that he did not return to his training facility.  He states that a few months went by and he never heard anything until he received a letter stating that he was AWOL.  He states that he did the right thing and turned himself in so that he could return to Fort Knox, Kentucky, to be out processed "yet again."  He states that he was no longer in an active status by 5 December 2007 and he had been furnished an RE code of 4 and sent on his way.  He states that the actions taken by the Army has destroyed him in every aspect as serving in the Army was something that he always wanted to do as a young boy.  He states that since he has been furnished an RE code of 4, he will never again be able to join any branch of the military thus ending his career even 

before it had a chance to start.  The applicant states that he loves this country very much and if he is given another chance to go through basic training he will serve this great nation with honor, duty, and loyalty.

7.  Army Regulation 635-5-1 prescribes the specific reasons for separating Soldiers from active duty and the separation codes to be entered on the DD Form 214.  It provides that when a Soldier’s narrative reason for separation is in lieu of trial by court-martial, a separation code of "KFS" will be entered in block 26 of the DD Form 214.

8.  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 RA 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, including RA RE codes.  The Separation Program Designator (SPD)/RE Code Cross Reference Table provides that when an individual's SPD is "KFS" with a narrative reason for separation of in lieu of trial by court-martial, then an RE code of 4 will be assigned.  An RE code of 4 applies to persons with a non-waivable disqualification.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show an RE code which would allow him to enlist in the U.S. Army.

2.  His contentions have been considered; however, there appears to be no basis for removal or waiver of those disqualifications which established the basis for the RE code that he was assigned.

3.  The applicant's records show that he was AWOL from 5 January 2007 until he was apprehended by civil authorities and returned to military control on 5 October 2007.  He had completed only 3 months and 16 days of net active service and he had 9 months of lost time due to AWOL.  While he may believe that he was unjustly punished due to a communication problem, there is no evidence in the available records, nor has the applicant submitted any evidence to support his contention that communication problems were the basis for the type of discharge that he received which ultimately led to him being furnished an RE code of 4.


4.  The narrative reason for separation currently reflected on the applicant's DD Form 214 shows that he was discharged in lieu of trial by court-martial.  Therefore, he was properly assigned an RE code of 4 in accordance with the SPD/RE Code Cross Reference Table.

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 has failed to submit evidence that would satisfy this requirement.

6.  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.



      _______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)                                         AR20080018682



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080018682



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1