BOARD DATE:	  26 January 2010

		DOCKET NUMBER:  AR20090012274


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 an honorable discharge, with a corresponding change to his reentry (RE) code and narrative reason for separation.

2.  The applicant states he was never court-martialed and all charges were dropped.

3.  The applicant provides a copy of a memorandum, subject:  Request for Discharge in Lieu of Trial by Court-Martial, dated 16 August 2007, approving his request for separation in lieu of court-martial in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant served in the Regular Army (RA) on three separate occasions.  His first period of service extended from 26 July 1983 through 23 May 1986; his second period of service was from 3 March 1987 through 8 February 1989; and his third period of service lasted from 20 February 2004 through 24 August 2007.

2.  The applicant's first period of service ended upon completion of his term of enlistment and his characterization of service was honorable.  His second period of service ended when he was separated for unsatisfactory performance under the provisions of chapter 13, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), with a characterization of service of general, under honorable conditions.  His third period of service ended with his discharge in lieu 

of trial by court-martial under the provisions of chapter 10, Army Regulation
635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), with a characterization of service of general, under honorable conditions.

3.  The applicant’s record does not contain a copy of his chapter 10, Army Regulation 635-200 voluntary administrative discharge packet.  However, the applicant’s record does contain a properly constituted DD Form 214 which shows the applicant was discharged under the provisions of chapter 10, Army Regulation 635-200, by reason of for the good of the service in lieu of trial by court-martial.  It further shows he received a general, under honorable conditions characterization of service, a separation code of "KFS," and an RE code of 4.  In connection with such a discharge, the applicant was charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge.  Procedurally, the applicant was required to consult with defense counsel and to voluntarily, and in writing, request separation from the Army in lieu of trial by court-martial.  In doing so, the applicant would have admitted guilt to the stipulated or lesser included offenses under the UCMJ.

4.  The applicant petitioned the Army Discharge Review Board (ADRB) on 27 August 2008 seeking a discharge upgrade.  The ADRB, after considering his case on 3 June 2009, denied his request.

5.  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.  A discharge under other than honorable conditions is normally considered appropriate.

6.  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.

7.  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 (Regular Army and Army Reserve Enlistment Program), covers eligibility 
criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the U.S. Army Reserve (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.

8.  Army Regulation 635-5-1 (Separation Program Designator (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 635-40, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant wants his general, under honorable conditions discharge upgraded to honorable, a change to his RE code, and a change to his narrative reason for separation.  He contends that all charges against him were dropped.

2.  The applicant committed an offense or offenses punishable under the UCMJ with a punitive discharge.  Court-martial charges were preferred against him and he voluntarily requested discharge in lieu of trial by court-martial.  In making his request, the applicant admitted guilt to the stipulated or lesser included offenses for which he was charged.  He was not tried because his request was accepted and he was discharged.

3.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial, is presumed to have been administratively correct and in conformance with applicable regulations.  His request for a chapter 10 discharge tends to show he wished to avoid the court-martial conviction and the punitive discharge that he might have received as a result of a court-martial.
4.  The applicant's issued RE code and narrative reason for separation were proper based on his request for chapter 10 discharge.  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 the aforementioned requirement.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20090012274



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ABCMR Record of Proceedings (cont)                                         AR20090012274



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