IN THE CASE OF:	  

		BOARD DATE:	  30 July 2009

		DOCKET NUMBER:  AR20090006194 


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 change of his reentry (RE) code so he can reenter the military.

2.  The applicant states that his discharge was upgraded from under other than honorable conditions to honorable, but his RE code remained at RE-4.  He states that since his discharge he has completed anger management classes, personal counseling, and he was a patient in a rehabilitation facility for 7 months.  He always wanted to be a Soldier.  His grandfather served for 20 years and inspired him to serve.  He felt honored to serve in Iraq.

3.  He relates that when he came home for a mid-tour break in February 2006 he found his "wife was involved with another man and all my money was gone."  He could not control his anger and he was arrested for domestic violence.  He could not return to Iraq because of those charges.  He felt angry, hurt, and betrayed.  He turned to alcohol to numb those feelings.  He relates, "Since my discharge I have completed anger management classes, personal counseling for over a year, and in-patient rehab.  It has been a long time healing…."

4.  The applicant provides a personal recommendation from a first sergeant that he be allowed to enlist; a letter from his father; official letters stating he was in a residential treatment program with the Salvation Army, he had been admitted to a long-term treatment facility, and he had successfully completed an anger management/domestic violence program, an intensive in-patient program, and an out-patient aftercare program.   

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel, in effect, deferred to the applicant.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army (RA) on 9 November 2004 at the approximate age of 20 years and 1 month.  He completed training as an infantryman, he was advanced to pay grade E-3, and he was assigned to the 101st Airborne Division. The applicant deployed to Iraq where he was awarded the Combat Infantryman Badge.

2.  Following an alcohol-related civilian arrest in March 2006 the applicant was ordered to abstain from alcohol and remain on base at Fort Campbell, Kentucky. He was to be command-referred to the drug and alcohol abuse program, although this may have been overcome by events.  Several substance-related incidents followed over the next few months.

3.  On 16 June 2006, charges were preferred against the applicant for using cocaine, possessing marijuana, and being incapacitated for duty due to alcohol or drugs.

4.  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 Uniform Code of Military Justice, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.

5.  He voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations).  He indicated that he understood that by requesting discharge he was admitting guilt to the charges against him or to a lesser included offense that could also result in a bad conduct or dishonorable discharge.  He also acknowledged he understood that if his request was approved, he could be deprived of many or all rights and benefits as a veteran under both Federal and State laws.
  
6.  The chain of command recommended approval of the applicant's request and, on 26 June 2006, the separation authority approved the discharge. 

7.  The applicant was accordingly separated in pay grade E-1, on 7 July 2006.  His service was characterized as under other than honorable conditions.  

8.  On 11 September 2006, the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade to his discharge and a change to his RE code.  On 6 June 2007, the ADRB conducted a records review pursuant to the applicant's application.  The ADRB determined that the applicant's characterization of service was improper by reason of use of limited use information.  As a result, the ADRB upgraded the applicant's characterization of service to honorable.  However, the ADRB also determined the applicant's narrative reason for separation was both proper and equitable, and voted not to change the reason for separation.

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.  The regulation also provides that a Soldier being discharged under other than honorable conditions will be reduced to the lowest enlisted grade.

10.  The Table of Maximum Punishments in the Manual for Courts Martial shows that a punitive discharge is authorized for possession or use of illegal drugs and for being intoxicated for duty.

11.  Army Regulation 635-5-1 (Separation Program Designator (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 separated under the provisions of Army Regulation
635-200, chapter 10 for the good of the service in lieu of trial by court-martial.  The SPD/RE Code Cross Reference Table establishes RE-4 as the proper code to assign members separated with this SPD code.

12.  Army Regulation 601-210 prescribes eligibility criteria, policies, and procedures for enlistment and processing into the RA and the U.S. Army Reserve (USAR).  Chapter 3 provides basic eligibility criteria for prior service applicants for enlistment and includes a list of armed forces RE Codes including RA RE codes.  RE-3 applied to persons separated from their last period of service with a waivable disqualification, and RE-4 to persons with a non-waivable 
disqualification.  That regulation further provides that RE codes may only be changed if they are determined to be administratively incorrect.
DISCUSSION AND CONCLUSIONS:

1.  The applicant states he has completed extensive rehabilitation and should be permitted to reenter the military.  He always felt proud to serve and would like to be able to do so again.

2.  He was properly separated and assigned an RE code in accordance with regulations then in effect.

3.  There appears to be no basis for removal or waiver of that disqualification which established the basis for the reentry eligibility code.

4.  In view of the circumstances in this case, the assigned RE code was and still is appropriate

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)                                         AR20090006194



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ABCMR Record of Proceedings (cont)                                         AR20090006194



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