IN THE CASE OF:	

		BOARD DATE:	  5 January 2010

		DOCKET NUMBER:  AR20090013104 


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 his reentry eligibility (RE) code be changed from RE-4 to RE-3 so he may reenter military service with an RE code waiver.

2.  The applicant states that he only had one instance of absence without leave (AWOL), but officials at the Fort Sill Personnel Control Facility misrepresented his service to the Army and mistakenly showed that he had a lengthy AWOL and that he was separated for the good of the service which led to an overly harsh RE code of 4.  However, his discharge was upgraded by the Army Discharge Review Board (ADRB) from an under other than honorable conditions discharge to an uncharacterized discharge.  Additionally, he has grown into an educated, mature, and worthy candidate for recruitments.  An upgrade of his RE code would allow him, with approval, evaluation, and supervision with a local recruiter, to reenter military service.

3.  The applicant provides a self-authored supplemental statement; copies of his business cards; a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 12 May 2003; a copy of the Office of the Staff Judge Advocate, Fort Sill, OK, memorandum, dated 27 April 2003, of his request for discharge review; a copy of the immediate commander's memorandum, dated 27 March 2003; a copy of his DD Form 616 (Report of Return of Absentee), dated 12 January 2003; a copy of his DA Form 4187 (Personnel Action), dated 11 December 2002; a copy of his DD Form 3286 series (Statement of Understanding - U.S. Army Enlistment Program) and allied documents, dated 6 June 2002; a copy of the ADRB Record of Proceedings, dated 19 November 2004; a character reference letter, dated 18 November 2008; and a copy of his college transcripts in support of his request.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's records show he voluntarily enlisted in the Regular Army for a period of 2 years on 3 September 2002.  Item 22a (Confirmation of Enlistment or Reenlistment) of his DD Form 4 (Enlistment/Reenlistment Document - Armed Forces of the United States) shows the applicant executed the following oath:

I, [Applicant], do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice (UCMJ).  So help me God.

3.  He was assigned to Company E, 2nd Battalion, 54th Infantry Regiment, Fort Benning, GA, for completion of basic combat training.

4.  On 11 November 2002, a little over 2 months into his military service, the applicant departed his unit in an AWOL status.  He was subsequently dropped from the Army rolls on 11 December 2002.  He surrendered to military authorities at Fort Sill, OK, on 12 January 2003.  He was assigned to Battery A, Personnel and Support Battalion, U.S. Army Field Artillery Center, Fort Sill, OK.

5.  On 15 January 2003, court-martial charges were preferred against the applicant for the charge of violating Article 86, UCMJ, by being AWOL during the period on or about 11 November 2002 through on or about 12 January 2003.

6.  On 16 January 2003, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations).

7.  In his request for discharge, the applicant indicated that he was making his request of his own free will and had not been subjected to any coercion whatsoever by any person.  He also acknowledged that he understood that by requesting discharge, he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions.  He further acknowledged he understood that if the discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  His request also stated, "Moreover, I hereby state that under no circumstances do I desire further rehabilitation, for I have no desire to perform further military service."  He elected not to submit a statement on his own behalf and indicated that he did not desire a physical examination prior to his separation.

8.  On 27 March 2003, the applicant's immediate commander recommended approval of the discharge with the issuance of an under other than honorable conditions discharge and indicated that the applicant had become disillusioned with the military and that his retention was not in the best interest of the Army.

9.  On 17 April 2003, the Chief, Criminal Law Division, Office of the Staff Judge Advocate, Fort Sill, OK, reviewed the applicant's request for discharge and found it legally sufficient.

10.  On 18 April 2003, the separation authority approved the applicant's request for discharge in lieu of a trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 and directed he receive an under other than honorable conditions discharge.  On 12 May 2003, the applicant was accordingly discharged.  The DD Form 214 he was issued shows he was discharged for the good of the service in lieu of a trial by court-martial with an under other than honorable conditions character of service.  This form further confirms he completed 6 months and 8 days of creditable active military service and he had 62 days of lost time under Title 10, U.S. Code, section 972.  Item 26 (Separation Code) of this form shows the entry "KFS" and item 27 (Reentry Code) shows the entry "4."

11.  On 2 February 2005, the ADRB granted the applicant relief in the form of an upgrade of the characterization of his service from under other than honorable conditions to uncharacterized.  However, the ADRB's action did not direct a change to the reason for separation and/or the RE code.

12.  Accordingly and subsequent to the ADRB's decision, the applicant was issued a new DD Form 214.  Item 24 (Character of Service) shows the entry "uncharacterized" and Item 28 (Narrative Reason for Separation) shows the entry "in lieu of trial by court-martial."  Item 26 of this DD Form 214 shows the entry "KFS" and item 27 shows an RE code of "4."

13.  The applicant submitted the following documentation in support of his request:

	a.  In his supplemental self-authored statement, the applicant states that his contractual agreement with the Army does not indicate that he cannot and will not be AWOL or indicate that a Soldier who is AWOL will be barred from reentry. The contract he signed indicates that if he voluntarily through his own fault or personal misconduct fails training, he would be retrained and allowed to complete his Army contract.  He also states that he suffered from shin splints during basic combat training which affected his physical conditioning.  He was then promised an entry-level status discharge but a new company commander did not grant said request.  He ultimately departed his unit in an AWOL status.  However, during his AWOL, he sought assistance from several individuals and ultimately turned himself in.  A few days later he was harshly discharged with an RE code that would not allow him to reenter the military.  He also states that since his discharge, he has reenrolled himself in a human services career field and has experienced a productive and stable employment, as well as training and consistent promotions.

	b.  A copy of his college transcripts show he is enrolled at a university program of study.

	c.  In a character reference letter, dated 18 November 2008, an individual comments on the applicant's stellar job performance, strong leadership skills, successful accomplishments as a lodge manager, excellent written and verbal communications skills, and overall punctuality, dependability, and effective management skills.

14.  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.

15.  Army Regulation also 635-200 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 and the Army Reserve.  Table 3-1 includes a list of the Regular Army RE codes.  An RE-1 applies to Soldiers completing their terms of active service who are considered qualified to reenter the U.S. Army if all other criteria are met. 
An RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable.  An 
RE-4 applies to Soldiers separated from their last period of service with a nonwaivable disqualification.

16.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that the SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  The primary purpose of SPD codes is to provide statistical accounting of reasons for separation.  They are intended exclusively for the internal use of DOD and the military services to assist in the collection and analysis of separation data.  The SPD code of "KFS" is the correct code for Soldiers separating under chapter 10 of Army Regulation 635-200.

17.  The SPD/RE code Cross Reference Table provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers.  This cross reference table shows the SPD code and the corresponding RE code.  The table in effect at the time of the applicant's discharge shows the SPD code of "KFS" has a corresponding RE code of "4."

18.  The Manual for Courts Martial provides that the sources of military jurisdiction include the Constitution and international law.  Military jurisdiction is exercised by military law.  Military law consists of the statutes governing the military establishment and regulations issued hereunder, the constitutional powers of the President and regulations issued thereunder, and the inherent authority of military commanders.  The purpose of military law is to promote justice, to assist in maintaining good order and discipline in the Armed Forces, to promote efficiency and effectiveness in the military establishment, and thereby to strengthen the national security of the United States.  "Article" refers to articles of the UCMJ.  Article 86 deals with AWOL.  It states, in pertinent part, that any member of the Armed Forces who without authority fails to go to his appointed place of duty at the time prescribed, goes from that place, or absents himself or remains absent from his unit, organization, or place of duty at which he is required to be at the time prescribed, shall be punished as a court-martial may direct.  The maximum punishment allowed in the case of a Soldier who is absent from a unit, organization, or other place of duty for not more than 3 days is confinement for 1 month and forfeiture of two-thirds pay per month for 1 month; for more than 3 days but not more than 30 days is confinement for 6 months and forfeiture of two-thirds pay per month for 6 months; for more than 30 days is a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 1 year; and for more than 30 days and terminated by apprehension is a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 18 months.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his RE-4 code should be upgraded to a more favorable code so he may reenter military service.

2.  The applicant's records show he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, the applicant admitted guilt to the stipulated or lesser-included offense under the UCMJ.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 
The applicant's discharge accurately reflects his overall record of service.  In addition, he stated in his request for discharge that under no circumstances did he desire to perform further military service.

3.  The evidence of record further confirms that the applicant's RE code was assigned based on the fact that he was separated under the provisions of chapter 10 of Army Regulation 635-200 in lieu of a trial by court-martial.  The RE code associated with this type of discharge is an RE-4.  Therefore, the applicant received the appropriate RE code associated with his discharge.

4.  The ADRB determined that the applicant's characterization of service was inequitable and upgraded it to an uncharacterized discharge.  The ADRB also considered the applicant's RE code along with the discharge upgrade action and determined that the RE code should not be changed.

5.  With respect to the lost time, the applicant departed his unit in an AWOL status on 11 November 2002, was dropped from the Army rolls on 11 December 2002, and returned to military control on 12 January 2003.  He therefore had 62 days of lost time from the date he departed to the date prior to his return to military control.  This entry is correctly shown on his DD Form 214.  Most importantly, however, is the fact that the applicant had a 2-year contractual obligation that he did not fulfill.  His election to be discharged in lieu of a trial by court-martial was a voluntary action.  He made his request for discharge of his own free will and indicated that he had not been subjected to any coercion whatsoever by any person.  He did not fulfill the contractual obligation for which he volunteered.

6.  Federal law requires everyone who enlists or reenlists in the Armed Forces of the United States to take the enlistment oath.  The oath is something that every Soldier must promise and adhere to for his/her entire military career.  The oath is a sworn pledge to protect the Constitution and not a specific person or place.  This promise is above and beyond personal goals or ambitions; it is about the values of an entire nation.  The discipline that is essential to the safety and effectiveness of each individual within the military is clearly laid out in plain language right from the beginning.  The oath is in effect for the entire career of a person in the Armed Service.  The Soldier also vows to obey the UCMJ should any disputes arise.

7.  The applicant fails to fully comprehend the seriousness of his actions and has not accepted any responsibility for his misconduct.  He argues that his enlistment contract did not include a clause that specifically disallows him from being AWOL; yet, he pleads to correct his RE code so he may reenter military service and take the same oath that he previously took and violated.

8.  The applicant's post-discharge academic and professional achievements are noted.  Additionally, his desire to reenter military service is also noted.  However, the ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  In order to justify correction of a military record, the applicant must show or it must otherwise satisfactorily appear that the RE code is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  Therefore, the applicant is not entitled to 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)                                         AR20090013104



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ABCMR Record of Proceedings (cont)                                         AR20090013104



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