IN THE CASE OF:	  

		BOARD DATE:	  5 May 2009

		DOCKET NUMBER:  AR20090003540 


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 the narrative reason for his separation be changed from in lieu of trial by court-martial to "entry level status" (ELS); that the characterization of his service be changed from under other than honorable conditions (UOTHC) to "Uncharacterized"; and that his reentry (RE) code be changed from RE-4 to RE-3.  

2.  The applicant states, in effect, that he made a huge mistake when he departed absent without leave (AWOL) during basic combat training (BCT).  He states that his discharge “in lieu of trial by court martial” was administered because he was more than 30 days AWOL and based on a determination that he could not be rehabilitated.  However, he claims he can be rehabilitated and the decision to separate him after he turned himself in was coerced.  He claims his ability overcomes the separation program designator (SPD) code he was issued is evidenced by the test scores he received when he was tested by the United States Marine Corps (USMC) subsequent to his discharge.  He claims his attempts to rejoin the Army have been unsuccessful based on his RE-4 code and he is requesting this be upgraded to an RE-3 code in order to allow him to rejoin the Army.  

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and a document titled “USMEPCOM PCN 680-3ADP Processee/Enlistee Record” 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 23 September 2003, and that on 9 November 2003, while still in BCT, he departed AWOL from his organization.  

2.  A DD Form 553 (Deserter/Absentee Wanted by the Armed Forces) on file in his Official Military Personnel File (OMPF) shows that the applicant was reported AWOL on 9 November 2003 and dropped from the rolls (DFR) of the organization on 10 December 2003.  

3.  A DD Form 616 (Report of Return of Absentee) on file in the applicant's OMPF shows he surrendered to military authorities on 17 August 2004, at 
Fort Irwin, California. 

4.  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) by being AWOL from on or about 9 November 2003 through on or about 17 August 2004.   

5.  On 31 August 2004, the applicant 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 UOTHC discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, he voluntarily requested discharge 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 stated that his request was made of his own free will and that he had not been subjected to coercion whatsoever by any person.  He further acknowledged that by requesting discharge he was acknowledging that he was guilty of the charge against him or of a lesser included offense therein contained which also authorizes the imposition of a bad conduct or dishonorable discharge.  He further confirmed that under no circumstances did he desire further rehabilitation, for he had no desire to perform further military service.  He also acknowledged that he understood 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 indicated that he understood he could face substantial prejudice in civilian life because of an UOTHC discharge.  

7.  On 25 October 2004, the separation authority approved the applicant's request for discharge under the provisions of chapter 10, Army Regulation 
635-200, and directed the applicant receive an UOTHC discharge.  On 
15 November 2004, the applicant was discharged accordingly.  

8.  The DD Form 214 issued to the applicant on the date of his separation confirms he was issued an UOTHC discharge under the provisions of Chapter 10, Army Regulation 635-200.  Item 24 (Character of Service) shows his service was characterized as UOTHC, Item 26 (Separation Code) shows he was issued a separation program designator (SPD) code of KFS), Item 27 (Reentry Code) confirms he received an RE-4 code, and Item 28 (Narrative Reason for Separation) shows the reason for his discharge was "in lieu of trial by court-martial."  It also shows that as of the date of his discharge, the applicant had completed a total of 4 months and 11 days of creditable active military service and that he accrued 278 days of time lost due to AWOL.  

9.  The applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge and to change the narrative reason for his separation on 10 October 2007.  The ADRB, after carefully reviewing the applicant's entire record of military service and all the issues and evidence he presented, determined the applicant's discharge was proper and equitable.  As a result, it voted to deny his request on 1 August 2008.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 contains guidance on character of service/description of separation and states, in pertinent part, that an ELS separation will be described as entry-level with service uncharacterized if processing is initiated while a Soldier is an ELS except when a characterization of UOTHC is authorized under the reason for separation and is warranted by the circumstances of the case. 

11.  Chapter 10 of the same 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 submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  A discharge UOTHC is normally considered appropriate.

12.  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 persons who are ineligible for continued Army service.
13.  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 to Soldiers separating under the provisions of chapter 10, Army Regulation 635-200, in lieu of trial by court martial.  Additionally, the SPD/RE Code Cross Reference Table establishes RE-4 as the proper reentry code to assign to Soldiers separated under this authority and for this reason.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that his record should be corrected to show he was separated while in an ELS, that his service was described as uncharacterized, and that he be issued an RE-3 code because he had been coerced into requesting discharge and that he can be rehabilitated was carefully considered. However, in his request for discharge, the applicant confirmed in writing that his request was made of his own free will and that he had not been subjected to coercion whatsoever by any person.  He further stated that under no circumstances did he desire further rehabilitation, for he had no desire to perform further military service.  Therefore, absent any evidence to support his allegation of coercion or that he desired rehabilitation at the time of his discharge, there is an insufficient evidentiary basis to support his claims.  

3.  The evidence of record confirms that the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. The record also shows that after consulting with defense counsel and being fully advised of the consequences of the discharge request he was making and of the affects of an UOTHC discharge, the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  In his request for discharge, he admitted guilt to the charge against him or of a lesser included offense that also authorized the imposition of a bad conduct discharge.  All requirements of law and regulation were met and that the rights of the applicant were fully protected throughout the separation process.  

4.  By regulation, an ELS separation and uncharacterized description of service is not authorized when a characterization of UOTHC is authorized under the reason for separation, and RE-4 is the proper reentry code to assign members separated under the provisions of chapter 10, Army Regulation 635-200, in lieu of trial by court-martial.  

5.  The evidence of record confirms the applicant requested discharge under the provisions of chapter 10, Army Regulation 635-200, in lieu of trial by 
court-martial, in order to avoid a trial by court-martial that could have resulted in his receiving a punitive discharge and that the authority and reason for his discharge supported a UOTHC characterization of service.  As a result, he was properly assigned an SPD code of KFS and a corresponding RE-4 code.  These codes were and remain valid and are supported by the authority and reason for the applicant's discharge.  

6.  Based on the applicant's short and undistinguished record of service and on the length of his AWOL, and absent any evidence of any error or injustice related to his discharge processing, there is an insufficient evidentiary basis to support granting his request for an ELS separation and uncharacterized description of service, and/or to upgrade his properly assigned RE-4 code.  

7.  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)                                         AR20090003540



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ABCMR Record of Proceedings (cont)                                         AR20090003540


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