IN THE CASE OF:	  

		BOARD DATE:	        20 August 2009

		DOCKET NUMBER:  AR20090002849 


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 discharge be upgraded and that his Reentry Eligibility (RE) code be changed to an RE code of “1.”

2.  The applicant states his current discharge is preventing him from moving forward with his life.  He states he has a fiancée and a daughter, and he cannot get a decent job or provide for them because he does not have a college degree.  Therefore, he believes the Army is his last, best hope for a good future, and he would like to reenter the Army.

3.  The applicant provides no evidence to support his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army for 4 years on 28 September 1998. He was transferred to Fort Knox, KY for basic training.  Shortly after arriving at Fort Knox, he departed in an absent without leave (AWOL) status (twice) during the periods 8-11 October 1998 and 7 November-8 December 1998.

2.  Following his return to military control, court-martial charges were preferred against the applicant for his periods of AWOL.  After consulting with legal counsel, on 11 December 1998, he requested separation for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200.  In so doing, he acknowledged he understood the nature of the charges against him and that he was guilty of the charges against him which 
authorized the imposition of a bad conduct or dishonorable discharge, if convicted.  Moreover, he stated that he did not desire further rehabilitation, nor had he any desire for further military service.  He stated that he understood the nature and consequences of the under other than honorable conditions discharge that he might receive.  He submitted a statement in his own behalf in which he stated his recruiter deceived him by telling him he had 180 days from entry on active duty to get out with an entry-level separation (ELS).  Once he came on active duty, no one would give him an ELS and his drill sergeant told him to go AWOL if he really wanted out.

3.  On 19 December 2000, the applicant’s chapter 10 discharge was approved.  He was discharged under other than honorable conditions on 5 February 2001.  His was assigned a separation code of “KFS” and an RE code of “4” – not eligible to reenlist.

4.  The applicant petitioned the Army Discharge Review Board (ADRB) seeking a discharge upgrade.  The ADRB, after considering his case before a personal appearance board on 2 February 2009, denied his request.

5.  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.  A discharge under other than honorable conditions is normally considered appropriate.

6.  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 enlisting and processing into the RA and the eligibility for prior service applicants for enlistment.  That chapter includes a list of Armed Forces RE codes and RA RE codes. 

7.  A separation code of “KFS” applies to persons discharged for the good of the service, in lieu of court martial.  An RE code of “4” applies to such persons not qualified for continued Army service.  Those individuals discharged under the provisions of chapter 10, Army Regulation 635-200 are disqualified to reenlist and the disqualification is nonwaivable.



8.  Army Regulation 635-200 provides guidance on the characterization of service and states, in pertinent part:

	a.  Paragraph 3-7a states that an Honorable Discharge (HD) is a separation with honor and entitles the recipient to benefits provided by law.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	b.  Paragraph 3-7b states that a General Discharge (GD) 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 HD.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests a discharge upgrade and a change in his RE code to enable him to reenlist.

2.  The applicant entered the Regular Army on a 4-year enlistment on 28 September 1998.  Before he completed his initial entry training, he went AWOL on two occasions.  Court-martial charges were preferred against him.

3.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.  

4.  The available evidence confirms the applicant’s RE code was assigned based on the fact that he was discharged under the provisions of chapter 10 of Army Regulation 635-200, in lieu of trial by court-martial, due to being AWOL.  The 
RE code associated with this type of discharge is a “4.”  Therefore, the applicant received the appropriate RE code associated with his discharge.  The available evidence is not sufficient for the upgrade of his discharge or the correction of his RE code.

5.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  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)                                         AR20090002849



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ABCMR Record of Proceedings (cont)                                         AR20090002849



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