IN THE CASE OF:	  

		BOARD DATE:	       26 August 2009

		DOCKET NUMBER:  AR20090002401 


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 2007 discharge under other than honorable conditions be upgraded, that the reason for his discharge be changed and that his Reentry (RE) Code of RE-4 also be changed.

2.  The applicant states, in effect, that he believes it was unfair for the Army Discharge Review Board to deny his request simply because he signed for the discharge.  He states just because he signed for the discharge does not mean that he agreed with it.  He states that it was just his way of getting out of jail.  He noted he spent approximately 3 months in jail and was suffering everyday and maintains he should have gotten a better discharge.  He states he could have waited for a better discharge or get out of jail the first chance he got so he just wanted to get out right away.

3.  The applicant notes he made many mistakes and should have talked to a doctor but let “the schizophrenia” get the best of him.  He asks “how can someone prepare for schizophrenia if they never been through something like that” and notes that it “messed up” his life.  He states the discharge is impacting his ability to get a good job and just wants to get his life together.

4.  The applicant provides no additional evidence in support of his request.





CONSIDERATION OF EVIDENCE:

1.  Records available to the Board indicate the applicant enlisted and entered active duty as a Regular Army Soldier on 2 February 2006.  Following completion of training he was assigned to Fort Hood, Texas.  By 1 February 2007 he had been advanced to pay grade E-2.

2.  On 16 February 2007 the applicant departed AWOL (absent without leave).  He returned to military control on 27 February 2007 when he surrendered to military officials at his unit.  On 28 February 2007, however, he again departed AWOL.  He was dropped from the rolls of the Army on 18 March 2007.  On 
11 April 2007 he again surrendered to military official at Fort Hood, Texas.

3.  On 14 May 2007 he departed AWOL for a third time but on 17 May 2007 was found sleeping in his room in the barracks and his duty status was then changed from AWOL to present for duty.  On 30 July 2007 he departed AWOL for the fourth and final time.  He surrendered to a military official at Fort Hood on 
14 August 2007 and on 7 September 2007 was placed in pre-trial confinement.

4.  When charges were preferred against the applicant for his periods of AWOL he was also charged with being disrespectful to a noncommissioned officer stemming from incidents with his unit first sergeant in March and September 2007, multiple counts of drug use discovered as a result of urinalyses testing each time he returned from a period of AWOL, and damaging government property on 4 and 7 September when he punched holes in the wall of a military building.

5.  At the request of the Fort Hood Trial Counsel, a “Sanity Board” was convened between 8 and 9 November 2007 to address questions regarding the mental state of the applicant.  That board noted the applicant was evaluated through interviews, psychological testing, a review of a mental status evaluation, and review of documentation provided to the board by the Fort Hood Legal Office.  That board concluded that at the time of the applicant’s alleged criminal conduct, he suffered from chronic paranoid schizophrenia.  However, they also concluded the applicant’s condition did not prevent him from appreciating the nature and quality or wrongfulness of his conduct or from understanding the nature of the proceedings against him and cooperating intelligently in his own defense.

6.  On 29 November 2007, after consulting with counsel, the applicant voluntarily requested discharge for the good of the service, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 (in lieu of trial by court-martial).  In doing so, he acknowledged that he could be discharged under other than honorable conditions and furnished an Under Other Than Honorable Conditions Discharge Certificate, and as a result of the issuance of such a discharge, he could be deprived of many or all Army benefits, and that he could be ineligible for many or all benefits administered by the Veteran Administration.  He elected not to submit a statement in his own behalf.

7.  On 4 December 2007 the appropriate authority approved the applicant's request for discharge for the good of the service in lieu of trial by court-martial and directed that an Under Other Than Honorable Conditions Discharge Certificate be issued. 

8.  The applicant was discharged on 18 December 2007, under the provisions of Army Regulation 635-200, chapter 10, with his service characterized as under other than honorable conditions.  He was credited with completing 1 year, 8 months, and 23 days of total active service.  He had more than 130 days of lost time due to AWOL and confinement.  

9.  The reason for his discharge was recorded as “in lieu of trial by court-martial” in item 28 (narrative reason for separation) on his 2007 DD Form 214 (Certificate of Release or Discharge from Active Duty).  Item 27 (reentry code) reflects “4” and item 26 (separation code) reflects KFS.

10.  Army Regulation 635-200 set forth the basic authority for separation of enlisted personnel.  Chapter 10 of that regulation provided 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.  An under other than honorable conditions discharge is normally considered appropriate.

11.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies and procedures for enlistment and processing into the RA and the U.S. Army Reserve (USAR).  Chapter 3 of that regulation prescribes the basic eligibility for prior service applicants for enlistment.  That chapter includes a list of armed forces RE codes, including RA RE codes.  An RE code 4 indicates separation from the last period of service with a disqualification which cannot be waived and ineligibility for reenlistment.

12.  Army Regulation 635-5-1 (Separation Program Designator Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD (separation program designator) codes to be entered on the DD Form 214.  It notes that SPD code “KFS” is the appropriate code when the reason for discharge is “in lieu of trial by court-martial.”  Additionally, the SPD/RE Code Cross Reference Table establishes RE Codes to be assigned for each SPD.  This table states that when the SPD is "KFS" then an RE Code of 4 will be given.

13.  Army Regulation 601-210 also provides, in pertinent part, that RE codes may only be changed if they are determined to be administratively incorrect. 

14.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be inappropriate.

15.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

16.  On 12 January 2009 the Army Discharge Review Board denied the applicant’s request to upgrade the character of his 2007 discharge.  The applicant appeared before the board and testified.

DISCUSSION AND CONCLUSIONS:

1.  The evidence does confirm the applicant was suffering from chronic paranoid schizophrenia at the time of his misconduct.  However, it is also noted that it was determined that he was able to appreciate the nature and wrongfulness of his conduct.  As such, the applicant’s argument that his discharge should be upgraded and that the reason and RE code should be changed because his schizophrenia should somehow excuse his behavior is without foundation.

2.  Additionally, the applicant’s argument that he does not deserve the discharge he received because he was only attempting to get out of jail does not serve as a basis to conclude the discharge he received was inappropriate or issued in error.  The applicant could have faced the consequences of a court-martial and chose instead to be administratively discharged.  There is no evidence, and the applicant has not provided any, that he was pressured to request the discharge, that his rights were violated in any way, or that his separation was not processed appropriately, in spite of the fact that he just wanted to get out of jail.

3.  An SPD code of "KFS" applies to persons who are administratively discharged in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  The SPD/RE Code Cross Reference Table shows that an RE code of 4 is the applicable RE code assigned for individuals discharged in lieu of trial by court-martial.  Therefore, there is no basis for granting the applicant's requested relief in this case.

4.  The applicant's RE code is based on his reason for discharge and cannot be changed unless the applicant's narrative reason for separation is changed.  His narrative reason for separation was based on his discharge in lieu of trial by court-martial.  The fact that he may be experiencing trouble finding employment or that he desires to get his life together does not serve as a basis upon which to change this reason for his discharge or to upgrade the characterization of his service.

5.  The applicant's military service records show that he voluntarily requested discharge for the good of the service in lieu of trial by court-martial and acknowledged guilt of the charges against him.  There is no evidence to indicate the applicant's administrative separation was not accomplished in compliance with applicable regulatory guidance and no indication of procedural errors that would jeopardize his rights.

6.  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)                                         AR20090002401





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ABCMR Record of Proceedings (cont)                                         AR20090002401



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