IN THE CASE OF:	  

		BOARD DATE:	  10 September 2009

		DOCKET NUMBER:  AR20090009817 


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 under other than honorable conditions discharge be upgraded to a general, under honorable conditions discharge.  He also requests that his Reenlistment Eligibility (RE) code of 4 be changed to a code of 3 or below.

2.  The applicant states, in part, that having been in the military made him a better man, husband, and father and if given the opportunity to re-enter the Armed Services he would bring many skills and training that he once used.

3.  The applicant provides in support of this application a DD Form 214 (Certificate of Release or Discharge from Active Duty) for the periods ending on 25 June 2001, 5 March 2004, and 18 June 2007; he also provides seven third party letters of support.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army, on 2 February 2005, after serving in the United States Navy and the Army National Guard.

2.  On 24 April 2007, court-martial charges were preferred against the applicant for the following offenses:

   a.  while married, on diverse occasions, using an email account and Government internet service to receive and/or transmit sexually explicit photographs to a woman, not his wife and for using the same system to have sexually explicit conversations with a woman, not his wife.  

   b.  wrongfully having sexual intercourse with a woman, not his wife, on divers occasions, on or about 17 November 2006 and on or about 10 January 2007;
   
   c.  wrongfully having sexual intercourse with a woman, not his wife, on or about 8 November 2006;
   
   d.  wrongfully having sexual intercourse with a woman, not his wife, on divers occasions, on or about 1 November 2006 and on or about 31 January 2007; and 
   
   e.  wrongfully and without authority wearing upon his uniform the ribbon representing the Purple Heart.  

3.  On 7 May 2007, after consulting with legal counsel, the applicant voluntarily requested a discharge under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, for the good of the service in lieu of trial by court-martial.  He acknowledged that he was making the request of his own free will and had not been subjected to any coercion whatsoever by any person.  He acknowledged that by submitting the request for discharge he was guilty of one or more of the charges against him or of the lesser included offenses contained therein which also authorized the imposition of a bad conduct or dishonorable discharge.  He stated that under no circumstances did he desire further rehabilitation for he had no desire to perform further military service.  He was advised of the effects of a discharge under other than honorable conditions and that he might be deprived of many or all Army and Department of Veterans Affairs benefits.  

4.  On 31 May 2007, the appropriate authority approved the applicant’s request and directed that the applicant receive a discharge under other than honorable conditions.

5.  On 18 June 2007, the applicant was separated under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial with an under other than honorable conditions discharge.  He was assigned a separation code of KFS and an RE Code of 4.

6.  The applicant provided seven third party letters of support which attest to the applicant's good post-service conduct and accomplishments.

7.  The Army Discharge Review Board denied the applicant's request for an upgrade of his discharge on 18 July 2008.
8.  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.  A discharge under other than honorable conditions is normally considered appropriate.

9.  Army Regulation 635-200, paragraph 3-7b, 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.

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 and the U.S. Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  This chapter includes a list of armed forces RE codes, including Regular Army RE codes.

	a.  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.

	b.  RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but the disqualification is waivable.

	c.  RE code 4 applies to persons not qualified for continued Army service, and the disqualification is not waivable.

11.  The Separation Program Designator (SPD) Code/RE Code Cross Reference Table states that when the separation code is KFS then RE code will be 4.






DISCUSSION AND CONCLUSIONS:

1.  The applicant's record shows he was charged with the commission of offenses punishable under the Uniform Code of Military Justice with a punitive discharge.  

2.  The applicant's voluntary request for separation for the good of the service to avoid trial by court-martial was administratively correct and in compliance with applicable laws and regulations.  There is no indication the request was made under coercion or duress.  It must also be noted the applicant stated in his request for discharge that under no circumstances did he desire further rehabilitation for he had no desire to perform further military service.

3.  Based on the applicant's record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to a general discharge or an honorable discharge.

4.  Based upon the reason for the applicant's discharge, he was properly assigned an RE code of 4.  There is insufficient evidence that would warrant changing his RE code.

5.  The applicant's post-service conduct and accomplishments are noted; however, in order to justify a 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)                                         AR20090009817



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090009817



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1