IN THE CASE OF:	  

		BOARD DATE:	        11 AUGUST 2009

		DOCKET NUMBER:  AR20090002396


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 that his Reentry Eligibility (RE) code be changed from 4 to 3. 

2.  The applicant states, in effect, he would like to reenter the Army. 

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

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 24 October 2006.  However, he did not complete training.  He was absent without leave on 7 February 2006 and from 6 January through 5 March 2007.   

2.  When charges were preferred against the applicant under the provisions of the Uniform Code of Military Justice (UCMJ) he consulted with 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 discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial. 


3.  In his request for discharge, the applicant indicated that he understood that by requesting a discharge, he was admitting guilt to the charges against him, or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He further stated that under no circumstances did he desire further rehabilitation, for he had no desire to perform further military service.

4.  On 28 March 2007, the separation authority approved the applicant’s request for discharge and directed that he be discharged under other than honorable conditions.  On 13 April 2007, the applicant was discharged accordingly.  He had completed 3 months and 19 days of creditable active military service and he had approximately 60 days of lost time.

5.  The applicant's DD Form 214 indicates he was discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial for misconduct.  His character of service is shown as under other than honorable conditions.  He was assigned a separation program designator (SPD) code of KFS and an RE code of 4.

6.  Army Regulation 635-200 (Personnel Separations) 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.

7.  Army Regulation 601-210 prescribes eligibility criteria, policies, and procedures for enlistment and processing into the RA and the Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment and includes a list of armed forces RE Codes including RA RE codes.  RE 4 applies to persons separated from their last period of service with a non-waivable disqualification.  That regulation further provides that RE codes may only be changed if they are administratively incorrect.

8.  Army Regulation 635-5-1 (SPD Codes) provides, in pertinent part, that the reasons for separating Soldiers from active duty and their corresponding SPD codes will be entered on the Soldiers' DD Forms 214.  It states, in pertinent part, that the SPD code of “KFS” is the appropriate code to assign to Soldiers who request discharge in lieu of trial by court-martial.  

9.  The SPD/RE Code Cross Reference Table states that when the SPD is KFS then an RE code of 4 will be given.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his RE code should be changed so that he may be eligible to reenter the Army.

2.  The applicant’s records show he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant voluntarily and willingly requested discharge from the Army in lieu of trial by court-martial.  It appears that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s under other than honorable conditions discharge accurately reflects his overall record of service.

3.  The applicant was assigned an RE code of 4 and an SPD code of KFS based on the fact that he was separated under the provisions of chapter 10 of Army Regulation 635-200 due to conduct triable by court-martial, specifically for an extensive period of AWOL.  The applicant’s RE and SPD codes are correct.  There is no evidence of error or injustice.

4.  While the applicant’s desire to continue to serve his country is commendable there are no provisions for authorizing the change of a RE code for this purpose.

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.




      _______ _   _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)                                         AR20090004414



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ABCMR Record of Proceedings (cont)                                         AR20090002396



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