IN THE CASE OF:	  

		BOARD DATE:	  10 November 2009

		DOCKET NUMBER:  AR20090010440 


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 upgrade of his general, under honorable conditions discharge to a fully honorable discharge.  He further requests that the reason for his separation, Separation Program Designator (SPD) code, and reentry eligibility (RE) code be changed to more favorable reason/codes.

2.  The applicant states, in effect, that he departed absent without leave (AWOL) 3 weeks before the expiration of his term of service (ETS) date because his command would not authorize him transitional leave for a family emergency.  He was denied transitional leave because the family emergency did not involve an immediate family member.  The applicant points out that he had never been in any trouble prior to him going AWOL, he is a combat veteran, and his discharge has already been upgraded from under other than honorable conditions (UOTHC) to a general, under honorable conditions discharge by the Army Discharge Review Board (ADRB).

3.  The applicant provides documents pertaining to his Combat Action Badge (CAB) and his Army Commendation Medal (ARCOM) in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show that he enlisted in the Regular Army (RA) on 17 February 2004 and he was awarded military occupational specialty (MOS) 19D (cavalry scout).

2.  Between 19 May and 20 December 2006, the applicant was counseled on six occasions for intentionally falsifying a government document with the intent to avoid his daily duties; failing to return to his appointed place of duty; failing to report to his appointed place of duty; failing to make scheduled appointments; and disobeying a noncommissioned officer.

3.  The applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), on 25 May 2006 for making a false official statement.  He accepted NJP a second time on 29 December 2006 for two specifications of going from his appointed place of duty without authority and three specifications of failing to go at the time prescribed to his appointed place of duty.

4.  On 7 June 2007, the applicant's commander initiated a DA Form 5112-R (Checklist for Pretrial Confinement).  In that request the applicant's commander stated that "The accused absented himself from his unit without permission on or about 3 January 2007.  In the course of absenting himself on or about 3 January 2007, the accused broke a restriction that had been lawfully imposed by his Company Commander.  On 20 January 2007 the accused was seen on Ft. Riley.  His company commander and 1SG attempted to apprehend him by blocking his egress.  The accused fled at a high rate of speed through residential yards, and almost ran over 1SG P______.  He was dropped from the unit rolls on 4 February 2007.  The accused was apprehended by civilian authorities for aggravated assault (fired pistol at a car) on civilians in Manhattan, Kansas, and was returned to military control on or about 7 May 2007."

5.  On 7 June 2007, court-martial charges were preferred against the applicant for being AWOL from 3 January to 7 May 2007, and breaking restriction.

6.  On 11 June 2007, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), chapter 10, in lieu of court-martial for the good of the service.  The applicant's commander recommended approval, stating that the applicant "is a criminal who possesses absolutely no potential for future service.  His expeditious discharge is in the best interest of the Army."

7.  The applicant's request was approved by the appropriate authority.  Accordingly, on 22 June 2007, the applicant was discharged UOTHC.  The DD Form 214 he was issued shows his Separation Code (SPD) as "KFS" and his RE code as RE-4.


8.  The CAB recommendation submitted by the applicant shows that a 57mm rocket detonated approximately 20 meters from the applicant.  The ARCOM recommendation submitted by the applicant shows that he participated in over 200 combat missions.  

9.  On 3 April 2009, the ADRB upgraded the applicant's UOTHC discharge to a general, under honorable conditions discharge.  However, the ADRB did not change the SPD code, RE code, or narrative reason for separation pertaining to the applicant's discharge.

10.  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.

11.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the U.S. Army Reserve (USAR).  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 have a non-waivable disqualification.  RE-3 applies to persons who have a waivable disqualification.  

12.  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 KFS is the appropriate code to assign to 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 stipulates that an RE-4 code will be assigned to members separated under these provisions with an SPD code of KFS.   

13.  Army Regulation 635-200 further states, in pertinent part, 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 RA and the USAR.  Table 3-1 included a list of the RA 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 disqualification is waivable.  They are ineligible unless a waiver is granted. 

	c.  RE-4 applies to Soldiers who are separated from their last period of service with a nonwaivable disqualification.  They are ineligible for enlistment.

14.  The SPD/RE Codes Cross Reference Table shows that the SPD of "KFS" is to be assigned an RE-4 code.

15.  Army Regulation 635-200, paragraph 3-7a, 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.  

DISCUSSION AND CONCLUSIONS:

1.  Contrary to the applicant's statement that he had never been in any trouble prior to going AWOL, he was counseled on six occasions and he accepted NJP on two occasions prior to departing AWOL.

2.  The applicant's continuous, willful misconduct certainly warranted a UOTHC discharge.  It would appear that the ADRB upgraded the applicant's discharge based on his combat record.  As such, his characterization of service has already been mitigated by his combat service.  A further upgrade of his discharge would clearly be inappropriate based on his overall record of service.  It is noted that while the ADRB upgraded the applicant's UOTHC discharge to a general, under honorable conditions discharge, the ADRB did not change the separation authority, separation code, reentry code, or narrative reason or separation.

3.  The applicant was properly discharged and he was assigned the proper SPD and RE codes.  He has not submitted any evidence or argument which would warrant granting his requested relief.




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)                                         AR20090010440



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ABCMR Record of Proceedings (cont)                                         AR20090010440



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