IN THE CASE OF:	

		BOARD DATE:	7 July 2009  

		DOCKET NUMBER:  AR20090004132 


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 correction of his reentry eligibility (RE) code from RE-4 to a more favorable code.

2.  The applicant states that his RE code is incorrect because prior to his discharge, he was represented by a Judge Advocate General (JAG) official who was given specific instructions to represent him and ask for a general discharge. Those instructions were not followed and he ended up receiving an under other than honorable conditions discharge.  Since he was in confinement, he had no choice but to sign the paperwork in order to be released.  He also states that he contacted the office of his Member of Congress, but the staff member was unable to assist him while he was confined in Kuwait.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 29 April 2002, in support of his request. 

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show that, after having had prior service, he enlisted in the Regular Army for a period of 4 years on 18 April 2005.  He completed basic combat and advanced individual training and was awarded military occupational specialty 25F (Network Systems Switch Operator/Maintainer).  The highest rank/grade he attained during this period of military service was specialist/E-4.  

2.  The applicant's records also show he served in Qatar from 15 November 2006 to 19 December 2006 and Kuwait from 5 February 2007 to 30 September 2007.  His awards and decorations include the Army Achievement Medal (5th Award), the Good Conduct Medal, the National Defense Service Medal with bronze service star, the Global War on Terrorism Service and Expeditionary Medals, the Korea Defense Service Medal, the Noncommissioned Officer Professional Development Ribbon, the Overseas Service Ribbon, and the Driver/Mechanic Badge.

3.  On 12 May 2007, court-martial charges were preferred against the applicant for one specification of disobeying his commanding officer on or about 12 May 2007 and two specifications of violating a lawful general order on or about 18 January 2007 and on or about 11 May 2007.

4.  On 12 May 2007, additional court-martial charges were preferred against the applicant for one specification of attempting to escape the custody of his commanding officer on or about 12 May 2007; one specification of striking his commanding officer by pushing him on or about 12 May 2007; and one specification of disobeying a lawful order of a superior noncommissioned officer on or about 12 May 2007.

5.  On 16 May 2007, additional court-martial charges were preferred against the applicant for one specification of assaulting a superior noncommissioned officer by pushing him in the chest with his hands on or about 15 May 2007 and one specification of disobeying a lawful order of a superior noncommissioned officer on or about 15 May 2007.

6.  On 16 June 2007, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations).

7.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offense, that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions.  He further acknowledged he understood that if the 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 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.  His request also stated, "Moreover, I hereby state that under no circumstances do I desire further rehabilitation, for I have no desire to perform further military service."

8.  On 27 June 2007, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200 and directed he receive an under other than honorable conditions discharge and be reduced the lowest enlisted grade.  On 24 July 2007, the applicant was accordingly discharged.  The DD Form 214 he was issued shows he was discharged for the good of the service in lieu of a court-martial with a character of service of under other than honorable conditions.  This form further confirms he completed 2 years, 1 month, and 25 days of creditable active military service during this period of enlistment.  Item 26 (Separation Code) of this form shows the entry "KFS" and item 27 (Reentry Code) shows entry "RE-4." 

9.  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 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.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

10.  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.  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 includes 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.  Army Regulation 635-5-1 (Separation Program Designator Codes) states that the Separation Program Designator (SPD) codes are three-character alphabetic combinations which identify reasons for, and types of, separation from active duty.  The primary purpose of SPD codes is to provide statistical accounting of reasons for separation.  They are intended exclusively for the internal use of DOD and the military services to assist in the collection and analysis of separation data.  The "KFS" SPD code is the correct code for Soldiers separating under chapter 10 of Army Regulation 635-200.  

12.  The Separation Program Designator Code (SPD)/Reentry (RE) Code Cross Reference Table, dated 31 March 2005, provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers.  This cross reference table shows the SPD code and a corresponding RE code.  The SPD code of "KFS" has a corresponding RE code of "4."

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his RE-4 code should be corrected.

2.  The applicant’s records show he was charged with the commission of multiple offenses 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, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  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 discharge accurately reflects his overall record of service.  In addition, he stated in his request for discharge that under no circumstances did he desire to perform further military service.

3.  The evidence of record further confirms that the applicant’s RE code was assigned based on the fact that he was separated under the provisions of chapter 10 of Army Regulation 635-200, in lieu of trial by court-martial.  The RE code associated with this type of discharge is RE-4.  Therefore, the applicant received the appropriate RE code associated with his discharge.

4.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the RE code is in error or unjust.  The applicant did not submit evidence that would satisfy that requirement.  Therefore, the applicant is not entitled to relief. 



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)                                         AR20090004132



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ABCMR Record of Proceedings (cont)                                         AR20090004132



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