IN THE CASE OF:	  

		BOARD DATE:	        30 July 2009

		DOCKET NUMBER:  AR20090005550 


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, an upgrade of his under other than honorable conditions discharge, correction of his Reentry Eligibility (RE) code to show he received a fully honorable discharge and the issuance of an Honorable Discharge Certificate.  He also requests that the lost time that is shown on his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to show it is consistent with the lost time shown on his National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service).

2.  The applicant states that his girlfriend’s mother was sick at the time and he felt he should stay with her.  He adds that his NGB Form 22 shows his RE code as RE-3.  Therefore, he believes his DD Form 214 should contain the same code.  He also states the characterization of service and period of lost time shown on his DD Form 214 are inconsistent with those shown on his NGB Form 22.

3.  The applicant provides a copy of his DD Form 214, dated 13 April 2007, and a copy of his NGB 22, dated 6 February 2007.

CONSIDERATION OF EVIDENCE:

1.  On 19 October 2006, with prior enlisted service in the Regular Army (RA), the applicant enlisted in the Wisconsin Army National Guard (WIARNG) for a period of 7 years and 33 weeks.  He was subsequently ordered to active duty for training (ADT), on 1 November 2006, and assigned to Company B, 3rd Battalion, 4th Infantry Regiment, Fort Jackson, SC, for completion of basic combat training. 
2.  On 7 January 2007, the applicant departed his unit in an absent without leave (AWOL) status.  He was subsequently dropped from the Army’s roll on 6 February 2007.  He surrendered to military authorities at Fort Jackson, SC, on 4 March 2007.

3.  On 5 March 2007, the Joint Forces Headquarters, WIARNG, published Orders 064-524, discharging the applicant from the Army National Guard (ARNG) effective 6 February 2007 and assigning him to Company B, 3d Battalion, 34th Infantry Regiment, Fort Jackson, SC, under the provisions of paragraph             8-35k(10).  The NGB Form 22 he was issued shows he completed 3 months and 18 days of ARNG service.  Item 18 (Remarks) of his NGB Form 22 shows he had 30 days of lost time.  Item 24 (Character of Service) shows the entry "Uncharacterized"; and item 26 (Reenlistment Eligibility) shows the entry "RE-3."

4.  On 8 March 2007, court-martial charges were preferred against the applicant for one specification of being AWOL during the period on or about 7 January through 4 March 2007. 

5.  On 8 March 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 applicant was advised of 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, the applicant requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10, Army Regulation 635-200 (Personnel Separations).

6.  In his request for discharge, the applicant acknowledged he understood that by requesting a 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 than 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."

7.  On 21 March 2007, the applicant’s intermediate commander remarked that the applicant’s conduct rendered him triable by a court-martial under circumstances which could lead to a bad conduct discharge and that based on his previous record, punishment was expected to have had a minimum rehabilitative effect.  The intermediate commander recommended that the applicant be issued an under other than honorable conditions discharge.  

8.  On 27 March 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 the issuance of an under other than honorable conditions discharge.  The separation authority also directed that the applicant be reduced to the lowest enlisted grade.  On 13 April 2007, the applicant was accordingly discharged.  The DD Form 214 the applicant was issued shows he was discharged for the good of the service in lieu of a court-martial with an under other than honorable conditions discharge.  He had completed 3 months and 
16 days of creditable active military service and he had 56 days of lost time during this period of enlistment.  Item 26 (Separation Code) of this form shows the entry "KFS" and item 27 (Reentry Code) shows the entry "RE-4." 

9.  On 20 August 2008, the Army Discharge Review Board denied the applicant’s petition for an upgrade of his discharge.

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 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.

11.  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 RA and the US Army Reserve.  Table 3-1 included a list of the Regular Army 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 the last period of service with a nonwaivable disqualification.

12.  Army Regulation 635-5-1 (Separation Program Designator Codes (SPD)) states that 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 the Department of Defense and the military services to assist in the collection and analysis of separation data.  The SPD code of "KFS" is the correct code for Soldiers separating under chapter 10, Army Regulation 635-200.  

13.  The SPD/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" shows a corresponding RE code of "4."

14.  National Guard Regulation (NGR) 600-200 provides for management of enlisted personnel.  Chapter 8 of this regulation sets the policies, standards, and procedures for the separation of enlisted Soldiers from the ARNG.  It states, in pertinent part, that the separation of a Soldier from the ARNG is a function of State military authorities in accordance with State laws and regulations.  Paragraph 8-10 of this regulation states that a Soldier's service will be described as uncharacterized if separation processing is initiated while a Soldier is in an entry level status, except when characterization under other than honorable conditions is authorized under the reason for separation and is warranted by the circumstances of the case.  Upon enlistment, a Soldier qualifies for entry level status during the first 180 days of continuous active military service or the first 180 days of continuous active service after a service break of more than 92 days of active service.  There is no certificate issued in the case of an uncharacterized character of service. 

15.  Paragraph 8-34 of NGR 600-200 provides for ARNG Soldiers' RE codes and states that an RE code is determined at separation and is used to provide information concerning the Soldier's service in the ARNG, which will be considered upon future enlistment.  If a Soldier receives a discharge under other than honorable conditions, and the reason for discharge is nonwaivable for enlistment, the RE code will be RE-4.  If the reason for separation is waivable, the RE code will be RE-3.  

16.  Paragraph 8-35 of NGR 600-200 provides for the reasons for separation/discharge from the ARNG.  ARNG Soldiers who are dropped from the rolls of the Army will be discharged under paragraph 8-35k(10) and assigned an RE code of 3.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his under other than honorable conditions discharge should be upgraded, that his RE code should be changed, and that he should be issued a fully honorable discharge and an Honorable Discharge Certificate.  He also contends the lost time on his DD Form 214 should be corrected to show it is consistent with the lost time shown on his NGB Form 22.

2.  The applicant was issued two separation documents, a DD Form 214 and an NGB Form 22.  Each separation document is governed by an appropriate regulation.  He was issued an NGB 22 in accordance with NGR 600-200 as he was serving in an ADT status while a member of the WIARNG.  He was also issued a DD Form 214 in accordance with Army Regulation 635-200.

3.  With respect to his NGB 22, the following was considered:

	a.  during the first 180 days the applicant’s ARNG service was under review.  When separated within the first 180 days service is usually not characterized unless the circumstances of the separation warrant an under other than honorable conditions discharge.  This uncharacterized discharge is neither positive nor negative; it is not "derogatory."  It simply means the Soldier did not serve long enough to qualify for a specified characterization of service.  It also means that it was not ARNG that discharged him in lieu of trial by court-martial.  The ARNG merely discharged him to the control of his ADT unit;

	b.  having enlisted in the ARNG on 19 October 2006 and discharged on 6 February 2007, the day he was dropped from the Army rolls, the applicant completed 3 months and 18 days of ARNG service.  Therefore, since his period of service in the ARNG was less than 180 days and he was merely discharged to the control of his ADT unit, his character of service is correctly uncharacterized on his NGB Form 22.  Additionally, the appropriate RE code associated with his discharge is an RE-3, which is also correctly shown on his NGB Form 22 as an RE-3; and

	c.  the applicant was discharged from the ARNG on 6 February 2007 in accordance with paragraph 8-35 of NGR 600-200.  He had been AWOL since 7 January 2007.  Therefore, the appropriate entry of lost time from 7 January 2007 to 6 February 2007 is shown on his NGB Form 22. 

4.  With respect to his DD Form 214, the following was considered:

	a.  the applicant’s records show he was charged with the commission of an offense 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.  Although an honorable or general discharge is authorized with a chapter 10, a discharge under other than honorable conditions is normally considered appropriate.  Furthermore, the applicant’s discharge accurately reflects his overall record of service; 

	b.  the evidence of record 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 separation and RE codes associated with this type of discharge are "KFS" and "RE-4."  Therefore, the applicant was assigned the appropriate codes;

	c.  based on his record of indiscipline, the applicant's service while on ADT clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to either a general or an honorable discharge; and

	d.  while he was on ADT, the applicant departed in an AWOL status on 7 January 2007 and was dropped from Army rolls on 6 February 2007.  He remained in this status until he surrendered to military authorities at Fort Jackson, SC, on 4 March 2007.  Therefore, the period from 6 February 2007 to 4 March 2007 is considered lost time and is correctly shown on his DD Form 214.

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)                                         AR20090005550



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090005550



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1