IN THE CASE OF:	  

		BOARD DATE:	  6 May 2010

		DOCKET NUMBER:  AR20090018796 


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 correction of his reentry eligibility (RE) code from RE-4 to a more favorable code so he can enlist.

2.  The applicant states that due to the conditions surrounding his discharge, he should be allowed to enlist.

3.  The applicant did not provide any additional documentary evidence in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army for a period of 6 years on 2 June 2006.  He completed basic combat training and he was subsequently assigned to Company B, 447th Signal Battalion, Fort Gordon, GA, for completion of advanced individual training.  The highest rank/grade he attained during this period of military service was private/E-2.

2.  On 1 December 2006, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being disrespectful toward a superior noncommissioned officer.  His punishment consisted of a reduction to private/E-1 and 14 days of restriction and extra duty.

3.  His records contain an extensive history of negative counseling by several members of his chain of command for various infractions including multiple instances of failure to report, disrespect, disobeying lawful orders, failure to follow instructions, violation of a computer-user agreement, lying, failure to live up to the Army values, absence without leave (AWOL), consumption of alcohol, being drunk on duty, and failing the Army Physical Fitness Test.

4.  On 14 January 2007, he departed his training unit in an AWOL status; however, he returned on 15 January 2007.

5.  On 3 February 2007, he again departed his training unit in an AWOL status and on 5 February 2007 he was apprehended by civilian authorities for drunk driving and driving with a suspended license.  He was returned to his unit on 5 February 2007.

6.  On 6 February 2007, he again departed in an AWOL status; however, he returned on 7 February 2007.

7.  On 15 February 2007, his command preferred court-martial charges against him for one specification of failing to go at the time prescribed to his appointed place of duty on divers occasions, four specifications of being AWOL, one specification of disrespecting a superior noncommissioned officer, and two specifications of disobeying lawful orders.

8.  On 15 February 2007, he 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 a discharge under other than honorable conditions, 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).

9.  In his request for discharge, he indicated that he was making this request of his own free will and he had not been subjected to any coercion whatsoever by any person.  He also indicated 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."

10.  On 22 February 2007, he again departed his unit in an AWOL status and he was subsequently dropped from the Army rolls.

11.  On 23 February 2007, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200 and directed he receive an under other than honorable conditions discharge and be reduced the lowest enlisted grade.

12.  On 30 March 2007, he was arrested by civil authorities in VA and he was extradited to NC on 2 felony convictions.  The circumstances of his arrest are not available for review with this case.

13.  On 17 July 2007, he was discharged from the Army.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged for the good of the service in lieu of trial by court-martial with a character of service of under other than honorable conditions.  This form further confirms he completed 8 months and 12 days creditable active military service and had 152 days of lost time.  Item 26 (Separation Code) of this form shows the entry "KFS" and item 27 shows the entry "RE-4."

14.  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 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 635-200 states 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.

16.  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.  Table 3-1 includes a list of the Regular Army RE codes.  An RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army.  They are qualified for enlistment 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.  They are ineligible unless a waiver is granted.  An RE-4 applies to Soldiers separated from last period of service with a nonwaivable disqualification.

17.  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 "KFS" SPD code is the correct code for Soldiers separating under chapter 10 of Army Regulation 635-200.

18.  The SPD/RE Code Cross Reference Table, dated 31 March 2005, provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers.  This cross reference table shows the SPD code and a corresponding RE code.  The SPD code of "KFS" has a corresponding RE code of "4."

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his RE-4 code should be corrected.

2.  The applicant's records show he was charged with the commission of multiple offenses 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.  He voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Further, his 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 his RE code was assigned based on the fact that he was discharged under the provisions of chapter 10 of Army Regulation 635-200 in lieu of trial by court-martial.  The RE code associated with this type of discharge is RE-4.  Therefore, he received the appropriate RE code associated with his discharge.

4.  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 that 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)                                         AR20090018796



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ABCMR Record of Proceedings (cont)                                         AR20090018796



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