IN THE CASE OF:	  

		BOARD DATE:	  27 July 2010

		DOCKET NUMBER:  AR20090017659 


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 uncharacterized discharge be upgraded to a general discharge and that his reentry code of 4 be changed to an RE code 
of 1 or 2. 

2.  The applicant states that he is trying to reenter the Army, or at least be able to get some medical benefits for his right ankle.  He feels that the discharge he received is too harsh and that it does not fit his crime.  He broke his right ankle during the second week of basic combat training.  The surgeon placed two screws in his ankle.  The applicant states he was put in a medical hold status at the hospital.  He returned to his company and he was sent to Valley Forge with the company where he had to walk about 10 miles to the nearest camp site.  He wanted to graduate with his company but his ankle was not improving; therefore, he was sent to physical therapy for about 4 months and the situation with his ankle soured his attitude.  He missed physical therapy appointments.  He would only do physical training in the mornings which included the weight room and cardio.  He would also do the details that he was assigned.  He felt the only way out of the military was to leave.  About a month before he went absent without leave (AWOL), he was scheduled to have the screws removed from his ankle.  He missed his pre-operation appointment.  The drill sergeant found out and he got into trouble.  After the screws were removed, he spent another couple of weeks in physical therapy.  Then a week before Christmas, he decided to go AWOL.  About 2 months later he was discharged.  



3.  The applicant further states that the Army Discharge Review Board (ADRB) recently heard his case and changed his DD Form 214 to show he has uncharacterized service.  He believes the ADRB erred, he should have received at least a general discharge and his RE code should be at least a 1 or 2.

4.  The applicant provides, in support of his application, copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and a letter from the ADRB.

CONSIDERATION OF EVIDENCE:

1.  On 12 July 2007, the applicant enlisted in the Regular Army (RA).  He was assigned to Fort Jackson, South Carolina for training.

2.  On 10 September 2007, the applicant was assigned to F Company, 120th Adjutant General Training Battalion, for physical therapy.

3.  The applicant was AWOL from 9 December 2007 to 7 February 2008.  On 
8 February 2008, he was returned to military control at Fort Knox, Kentucky.

4.  On 21 February 2008, charges were preferred under the Uniform Code of Military Justice (UCMJ) for violation of Article 86 by being AWOL from 9 December 2007 to 8 February 2008.

5.  On 21 February 2008, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial, under the provisions of Army Regulation 635-200, chapter 10. 

6.  In his request for discharge, the applicant indicated he understood that by requesting discharge, he was admitting guilt to the charge against him, or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his 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 (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

7.  On 7 March 2008, the separation authority approved the applicant’s request for discharge and directed that he be issued a discharge under other than honorable conditions.  Accordingly, on 28 March 2008, the applicant was discharged.  He was assigned a Separation Program Designator (SPD) code of KFS and an RE code of 4.  His character of service was under other than honorable conditions.  He had completed a total of 6 months and 18 days of creditable active military service and he had accrued 61 days of time lost due to being AWOL.

8.  On 21 April 2009, the ADRB considered the applicant's request for an upgrade of his discharge.  After carefully examining his record of service, hearing his testimony, and considering the analyst's recommendation and rationale, the ADRB determined that the characterization of service granted was inequitable.  The ADRB concluded that the applicant's documented medical injury that occurred during basic combat training mitigated the discrediting entry in his service record.  Notwithstanding the propriety of his discharge, the ADRB concluded that his service should be described as uncharacterized, and accordingly, so voted.  The ADRB also determined that his narrative reason for separation was both proper and equitable and voted not to change it.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides 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, may submit a request for discharge for the good of the service in lieu of trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

10.  Army Regulation 601-210 prescribes eligibility criteria, policies, and procedures for enlistment and processing into the RA and the Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment and includes a list of armed forces RE codes including RA RE codes.  RE 4 applies to persons separated from their last period of service with a non-waivable disqualification.  That regulation further provides that RE codes may only be changed if they are determined to be administratively incorrect.

11.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities and reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  The SPD code of KFS was the appropriate code for the applicant based upon the guidance provided in Army Regulation 635-5-1 for Soldiers separating under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial.  Additionally, Table 2-3 (SPD/RE Code Cross Reference Table), Army Regulation 635-5 (Separation Documents) establishes RE code 4 as the proper reentry code to assign to Soldiers separated for this reason.

12.  Under the UCMJ the maximum punishment allowed for violation of Article 86, for being AWOL more than 30 days, is a dishonorable discharge and confinement for 1 year.

13.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his uncharacterized discharge is too harsh.  It should be upgraded to a general discharge under honorable conditions and his RE code of 4 should be changed to an RE code of 1 or 2 so that he may be eligible to reenter the military or at least obtain medical benefits.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  The applicant's contention that the discharge is too harsh is without merit.  Had his request for an administrative discharge not been approved, he could have received a much more severe punishment that could have included confinement and a punitive discharge.

4.  The RE code of 4 establishing his ineligibility for enlistment/reenlistment was correctly entered on his DD Form 214 in accordance with governing regulations.

5.  There is no apparent basis for removal or waiver of the applicant’s disqualification that established the basis for the RE code of 4.  Furthermore, there are no provisions authorizing the change of a reentry code simply to permit an individual to reenter the military or to obtain medical benefits.

6.  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)                                         AR20090017659



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ABCMR Record of Proceedings (cont)                                         AR20090017659



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