IN THE CASE OF:	  

		BOARD DATE:	  3 December 2009

		DOCKET NUMBER:  AR20090009595 


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 and his reenlistment eligibility (RE) code.

2.  The applicant states he was told that by submitting his paperwork to the "Review Board" all errors and his discharge would be upgraded.  He states the Board should consider upgrading his discharge and RE code in order for him to be reinstated within the U.S. Army.   He stated supporting documents had been forwarded by his Congressional representative.  However, no additional documents have been received.

3.  The applicant provides no additional evidence or official documentation in support of his application.  

CONSIDERATION OF EVIDENCE:

1.  The applicant's military personnel records show he enlisted in the U.S. Army Reserve (USAR) on 31 October 2001 for a period of 8 years.  He had previously completed 2 months and 3 days in the Regular Army and was discharged by reason of failure to meet procurement medical fitness standards - no disability.

2.  On 5 November 2001, the applicant was ordered to initial active duty for training (IADT) to report 9 November 2001.

3.  A DA Form 4187 (Personnel Action), dated 10 February 2002, changed the applicant's duty status from present for duty to absent without leave (AWOL) effective 10 February 2002 from B Battery, 1st Battalion, 79th Field Artillery, Fort Sill, OK.  

4.  Headquarters, 94th Regional Support Command Ayer, MA Orders 
02-125-002, dated 5 May 2002, show the applicant was discharged from the USAR with an uncharacterized discharge effective 10 May 2002.  These orders were apparently later revoked.

5.  A DA Form 4187, dated 27 March 2006, changed the applicant's duty status from dropped from the rolls to attached/present for duty effective 22 March 2006.  Section IV - Remarks indicates the applicant surrendered to military authorities at Fort Jackson, SC on 22 March 2006.

6.  On 30 March 2006, court-martial charges were preferred against the applicant for being AWOL during the period from on or about 10 February 2002 to on or about 22 March 2006.

7.  On 30 March 2006, the applicant voluntarily requested discharge in lieu of trial by court-martial.  He acknowledged that he was making the request of his own free will and acknowledged that he was guilty of the offense with which he was charged.  He further acknowledged that he was afforded the opportunity to speak with counsel prior to making this request.  In his request, the applicant acknowledged that he was advised he could be furnished an Under Other Than Honorable Conditions Discharge Certificate; that he could be deprived of many or all Army benefits; that he could be ineligible for many or all Department of Veterans Affairs benefits; and that he could expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.

8.  On 14 August 2006, the applicant's commander recommended approval of his request for discharge and recommended he receive a discharge under other than honorable conditions.

9.  On 16 August 2006, the appropriate authority approved the applicant's request for discharge in lieu of trial by court-martial and directed that he be furnished a discharge under other than honorable conditions.

10.  On 30 August 2006, the applicant was discharged under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations) in lieu of trial by court-martial.   The applicant was assigned a separation program designator (SPD) code of "KFS," and assigned an RE code of RE-4.  He had completed 
8 months and 10 days of net active service that was characterized as under other than honorable conditions.  He had 1,502 days of time lost.
11.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 21 December 2007, the ADRB reviewed and denied the applicant's request for upgrade.  The ADRB determined that the applicant's discharge was proper and equitable and that the discharge was properly characterized as under other than honorable conditions.

12.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons.  The regulation shows that the SPD code of “KFS” as shown on the applicant’s 
DD Form 214 specified the narrative reason for discharge as “In Lieu of Trial by Court-Martial."

13.  The SPD/RE Code Cross-Reference Table, dated 15 June 2006, shows that the appropriate RE code for the SPD code of "KFS" is RE-4.

14.  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 (Regular Army and Army Reserve Enlistment Program), then in effect, covered eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the US Army Reserve.  Chapter 3 of that regulation prescribed basic eligibility for prior service applicants for enlistment.  That chapter included a list of Armed Forces RE codes.

15.  Table 3-1 (U.S. Army reentry eligibility codes) of Army Regulation 601-210 provides that an RE-4 applies to a person separated from their last period of service with a non-waivable disqualification.  These individuals are ineligible for enlistment.  
17.  Paragraph 3-24 (Correction of Army reentry eligibility codes) of Army Regulation 601-210, then in effect, provided that RE codes may be changed only if they are determined to be administratively incorrect.
18.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the administrative 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.  The request must include the Soldier's acknowledgement that the Soldier understands the elements of the offense(s) charged and that the Soldier is guilty of the charge(s) or of a lesser included offense therein contained which also authorized the imposition of a punitive discharge.  A discharge under other than honorable conditions is normally considered appropriate.
19.  Army Regulation 635-200 provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

20.  Army Regulation 635-200 provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was told that his discharge would be upgraded upon submission of the paperwork.

2.  The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant submits an application to either the ADRB or the Army Board for Correction of Military Records (ABCMR) requesting change in discharge.  Changes may be warranted if the ABCMR determines that the characterization of service or the reason for discharge or both were improper or inequitable.  The Defense Discharge Review Standards specifically state that no factors should be established that require automatic change or denial of a change in discharge.

3.  The records contain orders discharging the applicant on 10 May 2002.  However, based on subsequent official documents, a DA Form 4187, charges that were preferred against him, and his discharge processing package all dated after the date of the orders, it is reasonable to conclude these orders were issued in error and revoked.

4.  The applicant was processed for separation based on his voluntary request for discharge in lieu of trial by court-martial.  Therefore, the SPD code of "KFS" is correct.  According to the SPD/RE Code Cross-Reference Table the assigned RE code of 4 is also administratively corrected based on the applicant's SPD code of "KFS." 

5.  The applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.  

6.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.

7.  In view of the above, there is insufficient basis to upgrade the characterization of the applicant's discharge to honorable or to under honorable conditions.

8.  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 that 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)                                         AR20090009595



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ABCMR Record of Proceedings (cont)                                         AR20090009595



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