BOARD DATE:	  9 September 2009

		DOCKET NUMBER:  AR20090006912 


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

2.  The applicant states, in effect, that during his separation processing his counsel did not advise him that based on his RE code he would not be able to reenter the military.  He further states he has made a lot of changes for the better in his life since his discharge, and he would appreciate the opportunity for a second chance to serve his country.

3.  The applicant provides the following documents in support of his application:  DD Form 214 (Certificate of Release or Discharge from Active Duty); Headquarters, 82nd Airborne Division, memorandum, dated 10 May 2007; and a third-party statement.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s records show he enlisted in the Regular Army and entered active duty on 27 April 2006.  He was trained in and awarded military occupational specialty 88M (Motor Transport Operator).  His record also shows the highest rank that he attained while serving on active duty was private (PV2).

2.  On 15 December 2006, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully using marijuana, a controlled substance, on or between 30 October 2006 and 30 November 2006.  The punishment imposed was a reduction to private (PV1), forfeiture of $636.00 per month for 2 months, and 45 days of extra duty and restriction.

3.  On 27 April 2007, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for violating Articles 85, 86, and 90 of the UCMJ by the following:  Article 85, for being absent without leave (AWOL) from his unit and with intent to remain away permanently from on or about 12 February 2007 until on or about 24 April 2007; Article 86, for being AWOL from on or about from 19 January 2007 until on or about 6 February 2007; and Article 90, for having received a lawful command from his superior commissioned officer to remain within Fort Bragg and willfully disobeying the same on or about 19 January 2007.

4.  On 4 May 2007, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the effects of an under other than honorable conditions (UOTHC) discharge, and of the rights available to him.  Subsequent to receiving this legal counsel the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.

5.  In his request for discharge, the applicant acknowledged that he understood that if his 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, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He further indicated that he understood that he could encounter substantial prejudice in civilian life by reason of a UOTHC discharge and he elected not to submit a statement in his own behalf.

6.  On 1 May 2007, the separation authority approved the applicant’s request for discharge and directed that he receive a UOTHC discharge.  On 22 May 2007, the applicant was discharged accordingly.  The DD Form 214 he was issued confirms he completed a total of 9 months and 19 days of active military service. Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) of the DD Form 214 shows that during his tenure on active duty he earned the Global War on Terrorism Service Medal and the Army Service Ribbon.

7.  The DD Form 214 also confirms that he was separated under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in lieu of trial by court-martial.  Item 26 (Separation Code) confirms the applicant was assigned a separation program designator (SPD) code of KFS and item 27 (Reentry Code) shows he was assigned an RE-4 code.

8.  The applicant provides a third-party statement from a friend who has known him for approximately 4 years.  This individual attests to the fact that since his discharge the applicant has become more mature and now realizes that his place is serving in the Armed Forces.  She further states she would be proud to know that the applicant's RE-4 code was upgraded to an RE-3 code and that he received another chance to serve his country.

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, 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.  A discharge UOTHC is normally considered appropriate.

10.  Pertinent Army regulations provide 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 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the U.S. Army Reserve.  Chapter 3 of that regulation prescribes 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 are permanently disqualified for continued Army service.

11.  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 of 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 SPD/RE Code Cross Reference Table establishes RE-4 as the proper code to assign members separated with this SPD code.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request that his RE-4 code be changed to RE-3 so that he may reenter the military and the supporting third-party statement he provided were carefully considered.  However, these factors are not sufficiently mitigating to support granting the requested relief.

2.  The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. After consulting with defense counsel, he voluntarily requested discharge in lieu of trial by court-martial.  In doing so, he admitted guilt to the stipulated offense(s) under the UCMJ that authorized the imposition of a punitive discharge.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  By regulation, the RE-4 code assigned to the applicant was the proper code to assign members separating under the provisions of chapter 10, Army Regulation 635-200, in lieu of trial by court-martial.  As a result, the RE-4 code was and remains valid.

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.

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)                                         AR20090006912



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ABCMR Record of Proceedings (cont)                                         AR20090006912



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