IN THE CASE OF:	  

		BOARD DATE:	  5 January 2010

		DOCKET NUMBER:  AR20090011706 


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 reconsideration of his earlier request to change his reentry eligibility (RE) code to RE-1.  He also requests, in effect, change of his reason for separation to reflect an "early release - other" and upgrade of his general, under honorable conditions discharge to an honorable discharge.

2.  The applicant states that he feels the counseling and rehabilitative requirements of Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), chapter 1 (General Provisions) were not considered prior to his separation.  He states he had no previous court-martial convictions and he had not received punishment under Article 15 of the Uniform Code of Military Justice.  He states the only infraction he had was a 7 day period of being absent without leave (AWOL) and the Manual for Courts-Martial does not provide for a punitive discharge for an AWOL of more than 3 days and but less than 30 days.  He states he should not have been processed for discharge under the provisions of Army Regulation 635-200, chapter 10 (Discharge in Lieu of Trial by Court-Martial).  He states that since furthering his education he has found a renewed sense of commitment and focusing on all around achievement, leadership, and contributing as a member of a team.  He states he has a strong desire to reenter the Army and he is completely positive he is a good candidate to return to the military.

3. The applicant provides, in support of his application, copies of his reissued DD Form 214 (Certificate of Release or Discharge from Active Duty); page one of the Army Discharge Review Board [ADRB] - Case Report and Directive; three 
training course diplomas, dated 8 August 2006, 25 October 2006, and 8 January 2007, respectively; a Student of the Month certificate for the month of May 2006; a National Healthcareer Association certificate of completion as a Certified Phlebotomy Technician with an expiration date of March 2009; a record of credit hours completed from Central Georgia Technical College, dated 10 June 2009; and four support letters, dated 7 February 2007, 12 February 2007, 4 June 2008, and one undated, respectively.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080010418 on 18 December 2008.

2.  The applicant presents a new argument which requires his case concerning a change to his RE code be reconsidered by the ABCMR.  The applicant argues the counseling and rehabilitative requirements of Army Regulation 635-200, chapter 1 were not considered prior to his separation.

3.  The applicant's military personnel records show he enlisted in the Regular Army (RA) on 15 May 2004.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 11B (Infantryman).

4.  DA Forms 4187 (Personnel Action), dated 16 February 2005 and 22 February 2005, show the applicant was AWOL from on or about 15 February to on or about 22 February 2005.

5.  The specific facts and circumstances pertaining to the applicant's discharge, including the charges preferred against him and his request for discharge, are not available for review.

6.  On 4 November 2005, the appropriate authority approved the applicant's request for discharge in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10 and directed that applicant be discharged with a general, under honorable conditions discharge.

7.  On 21 November 2005, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had completed 1 year, 6 months, and 4 days of active service.  It appears the applicant's DD Form 214 was erroneously issued with a characterization of service of under other than honorable conditions.
8.  Block 26 (Separation Code) of the applicant's DD Form 214 contains the entry, "KFS."  The Separation Program Designator (SPD) "KFS" is defined in Army Regulation 635-5-1 (SPD Codes).  This regulation specifies the narrative reason for SPD "KFS" is "In Lieu of Trial by Court-Martial" and the regulatory authority for discharge is Army Regulation 635-200, chapter 10.  He was assigned an RE code of RE-4.

9.  On 29 February 2008, the ADRB administratively corrected the applicant's  DD Form 214 to reflect an honorable discharge as directed by the separation authority on 4 November 2005.  The ADRB also determined that the reason for his discharge was both proper and equitable and voted not to change it.  An error was made in the preparation of the reissued DD Form 214 in that it showed he was discharged with a general, under honorable conditions discharge.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 1 of this regulation provides guidance for counseling and rehabilitative requirements to be considered when initiating separation action of enlisted personnel.  These requirements apply to separations initiated under chapters 5, 11, 13, 14, and 18 of this regulation.
  
11.  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.

12.  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 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.

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

14.  The SPD/RE Code Cross-Reference Table, dated 31 March 2003, shows that the appropriate RE code for the SPD code of "KFS" is RE-4.

15.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his discharge should be upgraded.  However, the records show that the ADRB upgraded his discharge to honorable on 8 April 2008.  Therefore, there is no issue for the Board to address concerning an upgrade of discharge.  Coordination has been made with the Army Review Boards Agency, Case Management Division, St. Louis, MO to ensure a corrected DD Form 214 is prepared and sent to the applicant.

2.  The applicant contends he was not afforded the counseling and/or the rehabilitative requirement provided for in chapter 1 of Army Regulation 635-200. This chapter provides guidance for counseling and rehabilitative requirements to be considered when initiating separation action of enlisted personnel under the provisions of chapters 5, 11, 13, 14, and 18 of this regulation.  Since he was discharged under the provisions of chapter 10 by his own request, the counseling and rehabilitative requirements do not apply.

3.  The ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 

4.  The applicant's separation packet is not available for review.  However, in order for him to be discharged under the provisions of chapter 10 of Army Regulation 635-200, charges would have had to have been preferred against him for an offense for which the authorized punishment included a punitive discharge. The applicant would have had to have voluntarily requested discharge and acknowledged that he could receive an under than honorable discharge.  

5.  The applicant contends he was improperly discharged under the provisions of chapter 10 because the offense of a 7 day AWOL is not punishable by a punitive 

discharge.  However, the charge sheet indicating exactly what charges were preferred against the applicant is not available for review.  Therefore, it must be presumed that sufficient charges were preferred against him for offenses for which the authorized punishment included a punitive discharge.

6.  In the absence of evidence to the contrary, it is presumed that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  

7.  In view of the above, the reason for the applicant's discharge and the SPD CODE of "KFS" is correct.  Therefore, as shown on the Separation Program Designator Code (SPD)/Reentry (RE) Code Cross-Reference Table the assignment of an RE-4 is correct.

8.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.

9.  The applicant's statements concerning his post-service achievements and conduct are noted.  However, good post-service conduct alone is not sufficient to change a Soldier's reason for discharge or to change an administratively correct RE code.

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 to amend the decision of the ABCMR set forth in Docket Number AR20080010418, dated 18 December 2008, concerning his RE code.

2.  In regard to his request to change his reason for separation, 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)                                         AR20090011706



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090011706



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1