IN THE CASE OF:	  

		BOARD DATE:	  15 June 2010

		DOCKET NUMBER:  AR20090021490 


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 upgrade of his under other than honorable conditions discharge to a general discharge and change of his reentry (RE) code so he may reenter military service.

2.  The applicant states that had he known at the time he would not be permitted to renter military service, he would not have accepted an administrative discharge.  He did not realize how much this discharge would affect his life.

3.  The applicant provides no additional documentation in support of his application.

CONSIDERATION OF EVIDENCE:

1.  On 19 April 2007, the applicant enlisted in the Regular Army (RA).  He completed basic combat training at Fort Jackson, SC and was reassigned to Fort Lee, VA for advanced individual training.

2.  On 12 July 2007, the applicant was reported absent without leave (AWOL).  He surrendered to military authorities at Fort Dix, NJ on 23 August 2007.  He was subsequently transported to Fort Knox, KY.

3.  On 30 August 2007, charges were preferred under the Uniform Code of Military Justice (UCMJ) for violation of Article 86 (AWOL), for approximately 
42 days.

4.  On 30 August 2007, the applicant consulted with legal counsel and he 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 under the provisions of Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), chapter 10, for the good of the service - in lieu of trial by court-martial.

5.  After consulting with counsel and being advised of his rights and options, the applicant submitted a formal request for discharge under the provisions of Army Regulation 635-200, chapter 10.  He acknowledged he had been advised of and understood his rights under the UCMJ, and that he could receive an under other than honorable conditions discharge which would deprive him of many or all of his benefits as a veteran and that he could expect to experience substantial prejudice in civilian life if he received an under other than honorable conditions discharge.

6.  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 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 law.

7.  On 11 October 2007, the separation authority approved the applicant’s request for discharge and directed that he be discharged with a characterization of service of under other than honorable conditions.  On 2 November 2007, the applicant was discharged accordingly.  He had completed a total of 5 months and 3 days of creditable active military service and he had accrued 42 days of time lost.  He was given a separation program designator (SPD) code of KFS and an RE code of 4.

8.  On 4 February 2009, the Army Discharge Review Board (ADRB) considered the applicant's request for an upgrade of his discharge.  The ADRB determined that his discharge was proper and equitable and denied his request.

9.  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 at any time after the charges have been preferred, 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.  Under the UCMJ, the maximum punishment allowed for violation of Article 86, for AWOL of more than 30 days, is a dishonorable discharge and confinement for 1 year.

11.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) 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.

   a.  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.

   b.  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. 

   c.  RE-4 applies to Soldiers who are separated from their last period of service with a nonwaivable disqualification.  They are ineligible for enlistment.

12.  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, the SPD/RE Code Cross Reference Table establishes RE code of 4 as the proper RE code to assign to Soldiers for this reason.

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 that his under other than honorable conditions discharge should be upgraded to a general discharge and his RE code should be changed so that he may reenter military service.

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

3.  The RE code of 4, establishing his ineligibility for enlistment/reenlistment, was correctly entered on his separation document in accordance with governing regulations.

4.  There is no apparent basis for removal or waiver of the applicant’s disqualification that established the basis for the issuance of his RE code of 4.  While the applicant’s desire to continue in service to his country is commendable, there are no provisions authorizing the change of an RE code for this purpose.

5.  There is no available evidence and the applicant did not provide any evidence to show that he had any mitigating circumstances or that his AWOL was a reasonable solution to them.

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.

7.  In view of the foregoing, the applicant's request should be denied.

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)                                         AR20090021490



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ABCMR Record of Proceedings (cont)                                         AR20090021490



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