IN THE CASE OF:	  

		BOARD DATE:	  4 June 2009

		DOCKET NUMBER:  AR20090003617 


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 2002 discharge under other than honorable conditions be upgraded and that his Reentry (RE) Code 4 be changed to permit him to return to military service.

2.  The applicant states he enlisted in the Army in 1998 and if his memory serves him correctly he reenlisted in September 2000.  He states while stationed at Fort Hood, Texas he received orders for Korea and while out processing he was accused of stealing three Night Vision Goggles (NVG) from another Soldier’s vehicle.  He states his accuser was the wife of another Soldier.  The applicant states he could not possibly have taken the goggles because he was supposed to be out processing and should never have been part of the field exercise and that there were no civilians or wives in the control point area.  

3.  The applicant states his chain of command told him he was going to be court-martialed and convicted.  When he subsequently began to receive threats from other Soldiers, the applicant states his chain of command would do nothing to help him.  The applicant states that he attempted to talk to the investigators and to the "Judge Advocate General" (JAG) at Fort Hood “with no progress,” therefore, he contacted a JAG/defense attorney at Fort Sill, Oklahoma.  He states he was unofficially told to leave his unit long enough to be dropped from the rolls of the Army and then turn himself in to another unit.  He states after careful consideration, he did just that.


4.  The applicant states, in effect, that once he confirmed he had been dropped from the rolls of the Army he turned himself in to the Austin, Texas police department and was subsequently transferred to Fort Sill.  He notes he was then given the option to be demoted and returned to his unit or to be “chaptered out of the Army.”  He states that even though he acted on the advice he was given he was separated with an under other than honorable conditions discharge because he went into an absent without leave (AWOL) status.

5.  The applicant states he would like his discharge upgraded and the bar to reenlistment removed.  He states he left his unit because he had no other choice.  He notes that in 2002 he found out who was responsible for stealing the NVG and setting him up to take the fall.  He states he is hoping to get his discharge upgraded and his RE Code changed so he can get back into the Army.

6.  The applicant provides a copy of July 2008 firefighter training certificate to show that he has been trying to better himself.

CONSIDERATION OF EVIDENCE:

1.  Records available to the Board indicate the applicant enlisted and entered active duty as a Regular Army Soldier for a period of 3 years on 9 September 1998.  Following completion of training he was assigned to Fort Hood, Texas and in January 2000 he was promoted to pay grade E-3.

2.  There is no indication the applicant ever executed a reenlistment contract.

3.  On 11 December 2000 the applicant departed AWOL and returned to military control on 4 January 2001.  On 11 January 2001 he again departed AWOL and returned to military control on 16 January 2001.  On 24 January 2001 the applicant departed AWOL for a third time and he was dropped from the rolls of the Army on 25 January 2001.  On 22 March 2001 he was apprehended by civilian authorities in Austin, Texas and returned to military control.

4.  A DD Form 458 (Charge Sheet) was prepared charging the applicant with three specifications of being AWOL.  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 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 Department of Veteran Affairs.  He elected not to submit a statement in his own behalf and he was placed in an excess leave status effective 6 April 2001.

5.  On 13 December 2001, 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. 

6.  The applicant was discharged, on 14 January 2002, under the provisions of Army Regulation 635-200, chapter 10 with his service characterized as under other than honorable conditions.  He was assigned an RE Code of 4 and he was credited with 3 years, 1 month, and 8 days of total active service.  He was given a separation program designator (SPD) code of KFS.

7.  On 6 September 2008 the Army Discharge Review Board (ADRB) denied the applicant's petition for an upgrade of his discharge.

8.  Army Regulation 635-200 sets forth the basic authority for 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.  An under other than honorable conditions discharge is normally considered appropriate.

9.  Army Regulation 635-200 states, in pertinent part, 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. 

10.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program), covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the US Army Reserve.  Table 3-1 included a list of the Regular Army Reenlistment Eligibility Codes (RE codes).  An RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army.  They are qualified for enlistment if all other criteria are met.  An RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable.  They are ineligible unless a waiver is granted.  An RE-4 applies to Soldiers separated from last period of service with a nonwaivable disqualification.

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

12.  Army Regulation 635-200, paragraph 3-7a, of this regulation 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.

13.  Army Regulation 635-200, paragraph 3-7b, also 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s argument that he was told unofficially to leave his unit and then turn himself in after being dropped from the rolls is not supported by any evidence of record.  Contrary to the applicant’s contention, documents in his records show he was AWOL on three different occasions and that he was apprehended by civilian authorities rather than surrendering on his own accord.  There is no evidence suggesting that he was under investigation, that he was advised to go AWOL, or that he executed a reenlistment contract in September 2000.

2.  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 have jeopardized his rights.  Given the reason for his discharge, he was properly given an RE Code of 4.

3.  The applicant successful completion of a firefighting course, while commendable, is not sufficiently mitigating to serve as a basis to upgrade his discharge or change his RE Code.

4.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his discharge.  He has not shown error, injustice, or inequity for the relief he now requests.  

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)                                         AR20090003617



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ABCMR Record of Proceedings (cont)                                         AR20090003617



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