IN THE CASE OF:	  

		BOARD DATE:	  17 April 2009

		DOCKET NUMBER:  AR20090001920 


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 of RE-4 be changed to a more favorable RE code.

2.  The applicant states, in effect, that he would like his RE code changed to allow him to reenlist.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s record shows he enlisted in the Regular Army and entered active duty on 16 November 2006.  

2.  The applicant’s Official Military Personnel File (OMPF) contains a 
DD Form 553 (Deserter/Absentee Wanted by the Armed Forces), dated 9 March 2007, that shows the applicant was reported absent without leave (AWOL), on 
24 January 2007, and he was dropped from the rolls (DFR), on February 2003, during initial entry training.

3.  The OMPF contains a DA Form 4187 (Personnel Action), dated 11 May 2007, which shows the applicant was apprehended by civilian authorities, on 5 May 2007, and returned to military control on 9 May 2007. 


4.  On 14 May 2007, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for violating Article 86 of the Uniform Code of Military Justice (UCMJ) for being AWOL from on or about 24 January through on or about 9 May 2007.

5.  On 14 May 2007, the applicant consulted legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions (UOTHC) discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, he voluntarily requested discharge for the good of the service, in lieu of trial by court-martial, under the provisions of Chapter 10, Army Regulation 635-200.

6.  In his request for discharge, the applicant acknowledged he understood that he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he understood he could face substantial prejudice in civilian life because of an UOTHC discharge.

7.  On 25 June 2007, the separation authority approved the applicant’s request for discharge and directed that he receive a discharge UOTHC under the provisions of chapter 10, Army Regulation 635-200.  On 18 July 2007, the applicant was discharged accordingly, after completing 4 months and 18 days   of active military service.

8.  The DD Form 214 the applicant was issued on the date of his discharge confirms he was discharged under the provisions of chapter 10, Army Regulation 635-200, by reason of “in lieu of trial by court-martial.”  It also shows he was assigned a Separation Program Designator (SPD) code of KFS and an RE code of RE-4.

9.  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 trial by court-martial.


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 covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the US 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.  RE-4 applies to members who are disqualified from future enlistment.  

11.  Army Regulation 635-5-1 (SPD 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.  It states, in pertinent part, that the SPD code of KFS is the appropriate code to assign Soldiers separated under the provisions of chapter 10, Army Regulation 635-200, by reason of in lieu of trial by court martial.  The SPD/RE Code Cross Reference Table establishes that RE-4 will be the code assigned to members separated with this SPD code.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his RE code of RE-4 should be upgraded in order to allow him the opportunity to reenter the military has been carefully considered.  However, the available evidence is not sufficiently mitigating to support granting the requested relief.  

2.  The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. After consulting with defense counsel, the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  

3.  The evidence of record further shows the applicant’s discharge processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the applicant’s rights were fully protected throughout the separation process.  

4.  Further, by regulation, the SPD code of KFS and the RE code of RE-4 are the proper codes to assign members separating under the provisions of chapter 10, Army Regulation 635-200, by reason of in lieu of trial by court-martial.  These codes were appropriately assigned at the time of discharge and they remain appropriate based on the authority and reason for discharge. 


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.




      _______ _ 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)                                         AR20090001920



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090001920



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1