IN THE CASE OF:	  

		BOARD DATE: 	       29 October 2009

		DOCKET NUMBER:  AR20090009805 


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 of RE-4 be changed to an RE-1 code. 

2.  The applicant states, in effect, that he would like his RE-4 code changed to an RE-1 code so he can reenter military service.  He claims that upon his release from military service, he was informed that he would be able to reenter the military after a few months.  He also states that if someone would have informed him of the significance of the RE-4 code he received, he would have never signed his DD Form 214 (Certificate of Release or Discharge from Active Duty).  He further indicates that his under other than honorable conditions (UOTHC) discharge was upgraded to a general, under honorable conditions discharge (GD) by the Army Discharge Review Board (ADRB); however, the ADRB failed to change his RE code.  He indicates his RE code should be changed based on his military record.

3.  The applicant provides a self-authored statement, trial counsel memorandum, and a medical benefits letter in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s record shows he enlisted in the Regular Army and entered active duty on 13 October 2005.  He was trained in, awarded, and served in military occupational specialty (MOS) 13B (Cannon Crewmember).


2.  The applicant’s DD Form 214 shows he arrived in Iraq on 6 August 2006.

3.  On 15 June 2007, a suspension of favorable personnel actions (FLAG) was initiated against the applicant for adverse actions.  On 21 June 2007, the applicant accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from on or about 15 May to on or about 12 June 2007.

4.  The applicant's Official Military Personnel File (OMPF) contains a 
DA Form 4856 (Developmental Counseling Form), dated 17 August 2007, which shows he was formally counseled by his first sergeant (1SG) regarding a 17 June 2007 positive urinalysis test for marijuana.  It also references the applicant's previous Field Grade Article 15 issued by the battalion commander on 20 July 2006, for his wrongful use of marijuana. 

5.  The applicant’s DD Form 214 shows he departed Iraq on 15 October 2007.

6.  The unit commander notified the applicant that it was his intent to initiate action to separate the applicant under the provisions of paragraph 14-12b of Army Regulation 635-200, for a pattern of misconduct.  The unit commander cited the applicant's positive urinalysis results and AWOL record as the basis for the separation action and recommended the applicant receive a GD.

7.  On 15 January 2008, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for violation of Article 86 of the UCMJ by being AWOL from on or about 10 December 2007 through on or about 15 January 2008.  The applicant acknowledged receipt of the preferred charge on 17 January 2008.

8.  On 15 January 2008, the applicant consulted legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a UOTHC discharge, and of the procedures and rights that were available to him.  Subsequent to this counseling, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial. 

9.  In his request for discharge, the applicant acknowledged his understanding that he would 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. He also indicated that he understood he could face substantial prejudice in civilian life if he received a UOTHC discharge.  

10.  On 24 January 2008, the separation authority approved the applicant’s request for discharge and directed that he receive a UOTHC discharge under the provisions of chapter 10, Army Regulation 635-200.  On 3 March 2008, the applicant was discharged accordingly.

11.  The DD Form 214 issued to the applicant on the date of his discharge confirms that he had completed a total of 2 years, 4 months, and 11 days of creditable active military service, which included more than 1 year of service in Iraq.  It also confirms that he was separated under the provisions of chapter 10, Army Regulation 635-200, in lieu of trial by court martial and that based on the authority and reason for his separation, he was assigned a Separation Program Designator (SPD) code of KFS and an RE code of RE-4.

12.  A DD Form 215 (Correction to the DD Form 214) on file, dated                    29 September 2008, confirms he accrued 64 days of time lost due to AWOL during the periods 15 May through 12 June 2007 and 10 December 2007 through 15 January 2008.

11.  On 27 February 2009, the ADRB considered the applicant’s case and voted to upgrade the characterization of his service to a GD, indicating the evidence of record supports the a conclusion that the applicant's characterization of service was too harsh.  The ADRB determined that while the applicant's misconduct was not condoned, the overall quality of his service, which included combat service, supported an upgrade of the characterization of his discharge to a GD.  However, the ADRB determined the authority and reason for the applicant's discharge were both proper and equitable.  

12.  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.

13.  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 covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the US 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 members who are disqualified from future enlistment.  


14.  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 Soldiers separated under the provisions of chapter 10, Army Regulation 635-200, by reason of in lieu of trial by court martial.  The SPD/RE Code Cross Reference Table establishes that RE-4 will be the code assigned to members separated with this SPD code.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his RE-4 code should be upgraded to an RE-1 code in order to allow him to reenter military service because at the time of his discharge he was told he would be allowed to reenlist within a few months and based on the upgrade of his discharge to a GD has been carefully considered. However, there is insufficient evidence to support this claim.  

2.  The evidence of record confirms the applicant’s misconduct began before he went to Iraq (an Article 15 on 20 July 2006 for wrongful use of marijuana) and continued while he was in Iraq (AWOL and a positive urinalysis for marijuana).  After returning from Iraq, he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. After consulting with defense counsel, the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  His discharge processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the applicant’s rights were fully protected throughout the separation process.  

3.  The evidence of record further shows the ADRB voted to upgrade the applicant’s UOTHC discharge to GD; however, it also found that the authority and reason for the applicant's discharge were both proper and equitable and as a result, this ADRB upgrade action did not entail a change to his RE-4 code.  By regulation, the SPD code of KFS and the RE code of RE-4 are the proper codes to assign members separating under the provisions of chapter 10, Army Regulation 635-200, by reason of in lieu of trial by court-martial.  These codes were appropriately assigned the applicant at the time of his discharge and they remain valid based on the authority and reason for his discharge.

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)                                         AR20090009805



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090009805



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1