IN THE CASE OF:	  

		BOARD DATE:	  15 December 2009

		DOCKET NUMBER:  AR20090010616 


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 the Reentry (RE) Code on his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 
27 June 2007 be changed from a “4” to a “3.”

2.  The applicant states that he wants to reenter the military.  He offers that he made a good leader during his short time in the service and he feels that the military is the life for him.  He adds that he has stayed out of trouble since his separation from the military and he is asking for a second chance to prove to himself, his family, and his country that he can be a good Soldier.

3.  The applicant provides a self-authored statement in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s record shows that he enlisted in the Regular Army (RA) on 
2 August 2006 for a period of 4 years for training in military occupational specialty (MOS) 25Q (Multichannel Transmission Systems Operator-Maintainer).

2.  On 23 April 2007, charges were preferred against him for being absent without leave (AWOL) from his unit from 19 January 2007 to 17 April 2007.

3.  On the same date, the applicant consulted with counsel and he voluntarily requested a discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations).
4.  In his request for discharge he acknowledged that he was making the request under his own free will; that he was afforded the opportunity to speak with counsel; that he may be furnished an under other than honorable conditions discharge that he may be deprived of many or all Army benefits; that he may be ineligible for many or all Department of Veterans Affairs benefits; and that he may expect to encounter substantial prejudice in civilian life due to the issuance of an under other than honorable conditions discharge.  The applicant elected not to submit a statement in his behalf.

5.  On 13 June 2007, the appropriate authority approved the applicant's request for discharge for the good of the service in lieu of trial by court-martial and directed that an Under Other Than Honorable Conditions Discharge Certificate be issued.

6.  The applicant’s DD Form 214 shows that he was discharged on 27 June 2007 under the provisions of chapter 10, Army Regulation 635-200 in lieu of trial by court-martial.  Item 24 (Character of Service) shows the entry "Bad Conduct." The applicant had completed a total of 7 months and 28 days of creditable active military service.  Item 26 shows he was assigned a Separation Program Designator (SPD) code of "KFS" and item 27 shows his RE code as "4."

7.  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.

8.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the 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-1 permits immediate reenlistment if all other criteria are met.  RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable.  An RE code of “4” indicates separation from the last period of service with a disqualification which cannot be waived and ineligibility for enlistment.

9.  Army Regulation 635-5-1 (SPD Codes) prescribes the specific authorities, reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  This regulation state, in pertinent part, that SPD code "KFS" applies to persons discharged for the good of the service in lieu of trial by court-martial.

10.  The SPD Code/RE Code Cross Reference Table shows that when the SPD is "KFS" then RE-4 will be given.

DISCUSSION AND CONCLUSIONS:

1.  Evidence of record shows that the applicant committed the offense of AWOL for which the authorized punishment could include a punitive discharge.  He voluntarily requested and received a discharge for the good of the service in lieu of trial by court-martial.  His request for separation under the provisions of Army Regulation 635-200, chapter 10, tends to show the applicant wished to avoid trial by court-martial, a Federal conviction, and the punitive discharge that he could have received.

2.  All requirements of law and regulation were met and the applicant’s rights were fully protected throughout the separation process.

3.  The applicant’s desire to continue in the service to his country is noted; however, there are no provisions authorizing the change of an RE code solely for this purpose.  Absent any evidence of error or injustice in the discharge process, the RE code assigned was proper and equitable based on the authority and reason for discharge, and it remains valid.  As a result, there is an insufficient evidentiary basis to support a change to the RE code.

4.  Evidence shows that the applicant’s records contain an administrative error which does not require action by the Board.  Therefore, administrative correction of the applicant’s records will be accomplished by the Case Management Support Division (CMSD), St. Louis, MO, as outlined by the Board in paragraph 2 of the BOARD DETERMINATION/RECOMMENDATION section below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X___  ___X____  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board determined that an administrative error in the records of the individual concerned should be corrected.  Therefore, the Board requests that the CMSD-St. Louis administratively correct item 27 of his DD Form 214 for the period ending 27 June 2006 to show his character of service as “Under Other Than Honorable Conditions.”



      ___________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)                                         AR20090010616



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ABCMR Record of Proceedings (cont)                                         AR20090010616



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