BOARD DATE:	  29 December 2009

		DOCKET NUMBER:  AR20090013034 


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 an earlier request that his reentry eligibility (RE) code be changed from 4 to 3.

2.  The applicant states his RE code should reflect his discharge so that he may be eligible to return to the military.

3.  The applicant provides an Army Discharge Review Board (ADRB) Case Report and Directive, a self-authored statement, and 6 third-party statements in support of this application.

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 AR20080015615, on 30 December 2008.

2.  The applicant provides a self-authored statement and six third-party statements, which were not previously reviewed by the ABCMR; therefore, they are considered new evidence and as such warrants consideration by the Board.

3.  The applicant enlisted in the Regular Army on 5 October 1998 and upon completion of initial entry training was awarded military occupational specialty 21W (Carpentry and Masonry Specialist).  He reenlisted for 3 years on 
10 January 2002.
4.  On 24 August 2004, charges were preferred against the applicant for failure to obey a lawful general regulation by wrongfully carrying his privately-owned weapon to a field training exercise and by not registering his privately-owned weapon with the Provost Marshal.  He was also charged with negligently discharging his privately-owned firearm in a company tent.

5.  The applicant was notified that charges were preferred against him and on 
26 August 2004, after consulting with counsel, he submitted a request for discharge under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 10, for the good of the service in lieu of trial by court-martial.  He stated in his request that under no circumstances did he desire further rehabilitation for he had no desire to perform further military service.

6.  The appropriate authority approved the request for discharge on 2 September 2004 and directed the issuance of a discharge under other than honorable conditions.  On 21 September 2004, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial with his service characterized as under other than honorable conditions.  He completed 5 years, 11 months, and 17 days of active duty service.

7.  The applicant's DD Form 214 shows he was given a separation program designator (SPD) code of KFS (voluntary discharge under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial) and an RE code of 4.

8.  The applicant applied to the ADRB for an upgrade of his discharge and on 
25 April 2008, the ADRB upgraded his discharge to under honorable conditions (general); however, the ADRB determined that the reason for discharge was both proper and equitable and voted not to change it.

9.  The applicant provided a self-authored statement which essentially states that he has learned from his mistakes and is strongly pursuing a second chance to serve in the military.  It also appears the applicant is asking for a personal appearance before the ABCMR.

10.  The applicant also provided 6 third-party statements which attest to his character and recommend he be allowed to re-enter the military.

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.  

12.  Army Regulation 635-5-1 (Separation Program Designator Codes) prescribes the specific reasons for separating Soldiers from active duty and the separation codes to be entered on the DD Form 214.  It provides that when a Soldier's narrative reason for separation is in lieu of trial by court-martial, a separation code of KFS will be entered in block 26 of the DD Form 214.

13.  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.  That chapter includes a list of armed forces RE codes, including Regular Army RE codes.

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

15.  RE-3 applies to persons who are not qualified for continued Army service, but the disqualification is waivable.

16.  The SPD/RE Code Cross Reference Table states that when the SPD code is KFS then the RE code 4 will be issued.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was separated and assigned an RE code in accordance with the applicable regulation.  

2.  The third-party statements provided by the applicant failed to show that his RE Code of 4 was given in error or that it is unjust.

3.  The applicant was charged with offenses which could have led to a punitive discharge, which includes a bad conduct discharge or a dishonorable discharge. It was his decision to elect discharge to avoid trial by court-martial.  He also stated he had no desire to perform further military service.

4.  The applicant now has a desire to continue serving in the military; however, his RE code is based on his reason for separation and cannot be changed unless the narrative reason for separation is changed.  Additionally, in order to justify correction of a military record, the applicant must show, 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.

5.  It appears the applicant is also asking for a personal appearance before the Board; however, a formal hearing and a personal appearance by the applicant is not warranted in this case since it would not change the facts surrounding his discharge.

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 to amend the decision of the ABCMR set forth in Docket Number AR20080015615, dated 30 December 2008.




      _______ _   ___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)                                         AR20090013034



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ABCMR Record of Proceedings (cont)                                         AR20090013034



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