IN THE CASE OF:	  

		BOARD DATE:	        9 JUNE 2009

		DOCKET NUMBER:  AR20090005482 


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 his reentry (RE) code be changed from RE-4 to RE-3.   

2.  The applicant states, in effect, he is requesting a change to his RE code on the advice of his recruiter.  He claims that he realizes he made a mistake by going absent without leave (AWOL) after basic training and by then allowing himself to be discharged from the Army.  He states that he will do anything necessary to have his RE code changed from an RE-4 to an RE-3 so that he can reenlist in the Army.   

3.  The applicant provides a self-authored letter, a letter from his recruiter, and his DD Form 214 (Certificate of Release or Discharge from Active Duty) in support of his application.  

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows that he enlisted in the Regular Army and entered active duty on 20 September 2007.  

2.  On 7 January 2008, the applicant departed absent without leave (AWOL) from his basic training unit at Fort Benning, Georgia, and on 6 February 2008, he was dropped from the rolls of the organization.  

3.  On 29 May 2008, the applicant was returned to military control at Fort Knox, Kentucky.  
4.  On 2 June 2008, a Charge Sheet (DD Form 458) 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 7 January 2008 through on or about 29 May 2008.  

5.  The applicant consulted with legal counsel on 2 June 2008, and was advised of the basis for the contemplated trial by court-martial and the maximum permissible punishment authorized by the UCMJ, of the possible effects of an under other than honorable conditions (UOTHC) discharge, and of the procedures and rights available to him.  Subsequent to receiving this counseling, the applicant requested discharge in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200.  

6.  In his discharge request, the applicant acknowledged his understanding that by requesting discharge, he was admitting that he was guilty of the charge(s) against him or of a lesser included offense(s) therein contained which also authorized the imposition of a bad conduct or dishonorable discharge.  He further stated that under no circumstances did he desire further rehabilitation, because he had no desire to perform further military service.  He also acknowledged his understanding that he could receive an UOTHC discharge, and of the possible effects of that discharge, which could include his being ineligible for many or all benefits administered by the Veterans Administration (VA), that he could be deprived of his rights and benefits as a veteran under both Federal and State law, and that he could encounter substantial prejudice in civilian life as a result of receiving an UOTHC discharge.  

7.  On 26 June 2008, the separation authority approved the applicant's request for discharge in lieu of trial by court-martial and directed the applicant be furnished an UOTHC discharge, and on 18 July 2008, the applicant was discharged accordingly.  The DD Form 214 he was issued upon his discharge shows that he completed a total of 5 months and 7 days of creditable active military service and that he accrued 142 days of time lost due to AWOL.  It also shows that he was discharged under the provisions of chapter 10, Army Regulation 635-200, in lieu of trial by court-martial and that he was assigned a Separation Program Designator (SPD) code of KFS and an RE code of 4.  

8.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of the characterization of his discharge or for a change to the authority and reason for his discharge. 


9.  The applicant provides a letter from an Army recruiter that indicates the applicant has been into the recruiting station with the intent of rejoining the Army. It further indicates the applicant regrets his past actions and has matured.  The recruiter requests consideration be given to changing his RE code to 3, which would allow him to reenlist with a waiver.  

10.  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.  An UOTHC discharge normally is appropriate for a Soldier who is discharged in lieu of trial by court-martial.

11.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the United States Army Reserve.  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.  RE-4 applies to persons who have a nonwaivable disqualification.  

12.  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 KFS is the appropriate code to assign to Soldiers separated under the provisions of chapter 10, Army Regulation 635-200, in lieu of trial by 
court-martial.  The Department of the Army SPD/RE Code Cross Reference Table stipulates that RE-4 is the proper code to assign members separated under the provisions of chapter 10, Army Regulation 635-200 who was assigned a SPD code of KFS.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that his RE-4 code be changed to an RE-3 code was carefully considered.  However, the evidence of record confirms that he voluntarily requested discharge to avoid a court-martial that could have resulted in him receiving a punitive discharge, and that the UOTHC discharge he received was normal and appropriate under the applicable regulatory guidance.  


2.  The evidence of record further confirms that the applicant's separation processing, to include his SPD and RE code assignments, was accomplished in accordance with the applicable regulations.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

3.  The record confirms the applicant was properly assigned an SPD code of KFS and an RE-4 code based on the authority and reason for his discharge.  Absent any evidence of error or injustice in the discharge process, which includes the SPD and RE code assignments, the assigned RE-4 code was and remains valid and there is an insufficient evidentiary basis to support a change to the RE code at this time.

4.  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 or that would support amendment of the original Board decision in this case.  

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.




      _______ _   __XXX_____   ___
               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)                                         AR20090005482



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ABCMR Record of Proceedings (cont)                                         AR20090005482


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