IN THE CASE OF:	  

		BOARD DATE:	  20 April 2010

		DOCKET NUMBER:  AR20090017916 


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 an upgrade of his reentry eligibility (RE) code of 4 to an RE code that will allow him to reenter the military.  Therefore, his request is considered a request for the upgrade of his discharge.

2.  The applicant states, in effect, he was ordered to depart his unit in an absent without leave (AWOL) status so that his chain of command would have grounds to discharge him from the Army.  He contends that prior to being ordered to go AWOL he had not committed an offense punishable under the Uniform Code of Military Justice (UCMJ).  He states he was classified as a "misplaced Soldier" and he was never classified as being AWOL.  Additionally, he states he was not informed he would be assigned a RE code of 4 which would prohibit him from reenlisting.

3.  The applicant desires to complete his previous enlistment and states his previous enlistment contract listed an alternate enlistment as a commissioned officer.  He also indicates his contract provided for training in specialties such as:

* Infantry
* Special Forces
* Airborne
* Ranger
* Arabic language


4.  The applicant contends his Bachelor of Science degree and the fact he is pursuing a Master's degree are more than enough to qualify him for a minimum upgrade of his RE code to RE code 3.  He believes his education also qualifies him to be commissioned in the United States Military.  He has demonstrated discipline and worked extremely hard since his discharge.  The applicant believes he is a strong candidate for Special Forces, Delta Force, and Arabic Language training because he previously possessed a secret security clearance, scored well on the Army Physical Fitness Test, and completed the following training:  Basic Infantry, Level 1 Antiterrorism training, German Headstart, and the Combat Lifesaver course.

5.  Finally, the applicant states that he is suffering from extreme prejudice in the job market and despite the fact he is a homosexual, would not object to having his RE code changed for the purpose of demonstrating to future employers he is re-hirable.

6.  As documentary evidence in support of this request, the applicant provides copies of:  his civilian education, certificates for his aforementioned military training, and a character reference letter.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he enlisted in the Regular Army under the 18X Special Forces Enlistment Program on 2 August 2006.  His enlistment contract stipulated that if he became ineligible for or unable to complete 18X training he would forfeit the 18X option and be assigned as an Infantry Recruit.

2.  The applicant's record shows he did not complete the 18X training program.  Following completion of Basic Infantry training, he was awarded Military Occupational Specialty (MOS) 11B (Infantryman).  The highest rank/pay grade he attained while serving on active duty was specialist/E-4.  

3.  All of the facts and circumstances of the applicant's discharge are not available for review with this case.  However, his record contains a copy of his approved voluntary request for discharge and a properly-constituted DD Form 214 (Certificate of Release or Discharge from Active Duty).

4.  On 30 August 1990, 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 a discharge under other than honorable conditions, and of the procedures and rights that were available to him.  Following counseling, the applicant submitted 
a voluntary written request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations).  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense, that also authorized the imposition of a bad conduct or dishonorable discharge and acknowledged that 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, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

5.  On 11 September 2007, the separation authority approved the applicant's request and directed that he be discharged under other than honorable conditions and reduced to PVT/E-1 prior to execution of the discharge.

6.  The applicant's DD Form 214 shows he was discharged on 21 September 2007 under the provisions of chapter 10 of Army Regulation 635-200, in lieu of trial by court-martial with an under other than honorable conditions discharge.  He had completed 1 year, 1 month, and 20 days of active service.  
His DD Form 214 also shows that based on the authority and reason for discharge, he was assigned a Separation Program Designator (SPD) code of KFS and an RE code of 4.  

7.  On 8 January 2009, the applicant submitted a DD Form 293 (Application for Review of Discharge or Dismissal from the Armed Forces of the United States) to the Army Discharge Review Board (ADRB) requesting an upgrade of his RE code to 2 or 3 and that his service be uncharacterized.  The applicant's reason for this request was his desire to enter the U.S. Air Force as a commissioned officer.

8.  On 19 October 2009, the President of the ADRB, after careful consideration of his military records and all other available evidence, informed the applicant he was properly and equitably discharged.  Accordingly, his request for an upgrade of his discharge and a change in his RE code were denied.

9.  The applicant provides a character reference letter from the Director of Human Resources at the University of Wisconsin-Platteville.  She states the applicant began volunteering as an office assistant for the Human Resources Department in January 2010.  In this capacity he provides general receptionist services, filing, assisting with payroll input, monitoring correct raises for 1,500 student employees, and coordinating bargaining units' minutes and agendas.  In all of these capacities, he provided exceptional services.  He has also been employed with Dining Services since January 2009.  In this capacity, he provides customer service, operates cash registers, cleans, and performs general services for a large institutional dining services program.  She states the applicant is an extremely capable and cooperative employee and student.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of this 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.

11.  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.

12.  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.  

13.  Army Regulation 635-5-1 (SPD Codes) in effect at the time of the applicant's separation, provided 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 stated, in pertinent part, that the SPD code of KFS was the appropriate code to assign to Soldiers separated under the provisions of chapter 10 of Army Regulation 635-200 in lieu of trial by court-martial. 

14.  The SPD/RE Code Cross Reference Table also indicates that an RE code 4 was the proper code to assign members separated with SPD code KFS.

15.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the United States Army Reserve (USAR).  Chapter 3 of this regulation prescribes the basic eligibility for prior-service applicants for enlistment.  This chapter includes a list of Armed Forces RE codes, including RA RE codes:
	a.  RE code 1 applies to persons who are considered fully qualified for reentry or continuous service at the time of separation.

	b.  RE code 2 applies to persons qualified for enlistment, provided the reason and authority does not preclude enlistment or require a waiver.

	c.  RE code 3 applies to persons who are not considered fully qualified for reentry or continuous service at the time of separation, but disqualification is waivable.

	d.  RE code 4 applies to persons separated from their last period of service with a nonwaivable disqualification.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded and his 
RE code should be changed so that he will be eligible to reenter the military and/or be more marketable in the civilian job market was carefully considered and found to lack merit.

2.  The applicant's record indicates 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 require an admission of guilt to the offenses charged and are voluntary requests for discharge in lieu of trial by court-martial.  The evidence shows the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.

3.  The evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no indication of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

4.  The applicant was appropriately assigned an RE code of 4 based on his narrative reason for separation.  Military records are not changed solely for the purpose of making and individual eligible for employment or other benefits.

5.  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 did not submit any evidence that would satisfy this requirement and there is no basis for granting his 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)                                         AR20090017916



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ABCMR Record of Proceedings (cont)                                         AR20090017916



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