BOARD DATE:	  20 January 2010

		DOCKET NUMBER:  AR20090014118 


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 his reentry eligibility (RE) code be changed from a “4” to a more favorable code that will allow him to reenter military service.

2.  The applicant states that on 4 June 2007, he was contacted by his family in regards to his mother’s health.  She had been taken to the emergency room by ambulance for chest pains and numbness in her left side.  He goes on to state that the Red Cross recommended leave; however, his superior officer denied his leave request.  He continues by stating that his fear of his mother’s heath made him decide to go absent without leave (AWOL).  He also states that he was more concerned with being with his mother than doing the right thing and because his wife and child were living with his parents at the time, he came to realize how much of his child’s life he was missing.  He continues by stating that he now realizes that he should have kept his duties to his unit and his family separate and that he made an error in judgment and he would like an opportunity to now fulfill his duties.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), miscellaneous documents from his records, and medical documents related to his mother’s health in June 2007 in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 20 November 1985 and enlisted in the Regular Army (RA) on 13 July 2006 for a period of 5 years, training as a signal system support specialist, and a cash and seasonal enlistment bonus.  He was transferred to Fort Sill, OK to undergo his training.

2.  On 6 June 2007, while still undergoing his advanced individual training (AIT), he went AWOL and he remained absent in desertion status until he surrendered to military authorities at Fort Sill on 22 August 2007.  As a result, charges were preferred against him for the AWOL offense.

3.  At the time of his return the first sergeant did an AWOL interview and indicated that the applicant had previously received field grade nonjudicial punishment (NJP) for his first AWOL offense when his wife and daughter had been involved in a car accident and the command would not grant him leave to go home.  The NJP broke the applicant’s spirit and he no longer desired to be in the Army.  The applicant explained that he could not adapt to the Army and he did not desire to remain in the Army.  There is no record of his first AWOL or NJP in the available records.

4.  On 23 August 2007, after consulting with counsel, the applicant submitted a request for discharge for the good of the service, under the provisions of Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), chapter 10, in lieu of trial by court-martial.  In his request he indicated that he understood the charges that had been preferred against him, that he was making the request of his own free will, without coercion from anyone, and that he was aware of the implications attached to his request.  He also admitted that he was guilty of the charges against him or of lesser included offenses which authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged that he understood that he could receive a discharge under other than honorable conditions and that he might be deprived of all benefits as a result of such a discharge.  He further declined the opportunity to submit a statement in his own behalf.

5.  The appropriate authority approved his request on 27 November 2007 and directed that he discharged with a general, under honorable conditions discharge.

6.  Accordingly, he was discharged with a general, under honorable conditions discharge on 2 January 2008, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 1 year, 3 months, and 4 days of total active service and he had 76 days of lost time due to AWOL.  He was still in a trainee status at the time of his discharge and he was on voluntary excess leave.  He was issued a separation code of “KFS” and an RE Code of “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.  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 reason for discharge.  Army Regulation 601-210 covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the U.S. Army Reserve (USAR).  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.

9.  RE-4 indicates that a person is not qualified for continued Army service by virtue of being separated from the service with a nonwaivable disqualification.  The applicable regulations direct that an RE Code of 4 be issued for a Separation Code of “KFS”, which indicates separation for the good of the service - in lieu of trial by court-martial.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was discharged per his request, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial.  He was properly issued a separation code of “KFS” and an RE code of “4” in accordance with the applicable regulations.

2.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

3.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his records.  In doing so he admitted guilt to the charges against him.

4.  While he has now provided documents to mitigate his actions at the time, they are not sufficient to warrant a change in the narrative reason for his discharge and his RE Code.  He was given the discharge he requested at the time and he elected not to submit a statement in his own behalf at the time.  In fact, when he returned to military control he asserted that he had become disillusioned with the military and simply could not adapt. 

5.  In any event, he has failed to show that he was given an incorrect narrative reason for his discharge and RE Code.

6.  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.

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)                                         AR20090014118



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ABCMR Record of Proceedings (cont)                                         AR20090014118



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