IN THE CASE OF:	  

		BOARD DATE:	  22 June 2010

		DOCKET NUMBER:  AR20100000115 


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 under other than honorable conditions discharge be changed to an uncharacterized discharge and that his Reentry Eligibility (RE) Code be changed to a 3.

2.  The applicant states that since he did not have 180 days of service and he was in an entry-level status he should have received an uncharacterized discharge.  He adds that his RE code should be changed so that he may reenter the U.S. Army.

3.  The applicant provides no additional documentary evidence in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the U.S. Army Reserve on 10 May 2002 and entered active duty on 18 November 2002.

2.  A DD Form 458 (Charge Sheet), dated 13 January 2003, shows that charges were preferred against the applicant for leaving his unit in an absent without leave (AWOL) status on 19 December 2002.

3.  A DA Form 4187 (Personnel Action) shows the applicant's status was changed from AWOL to dropped from the rolls (DFR) effective 20 January 2003.

4.  A DD Form 616 (Report of Return of Absentee) shows the applicant was apprehended by civil authorities in Bethany, MO, on 1 May 2003 and returned to military control.

5.  The applicant's military personnel records do not contain his administrative separation packet.

6.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he entered active duty this period on 18 November 2002 and he was discharged on 2 July 2003 in accordance with the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, (discharge for the good of the service) in lieu of trial by court-martial.
At the time he had completed 3 months and 2 days of net active service this period and 6 months and 8 days of total prior inactive service:

   a.  Item 24 (Character of Service) shows "Under Other Than Honorable Conditions."

   b.  Item 26 (Separation Code) shows "KFS."

   c.  Item 27 (Reentry Code) shows "4."

   d.  Item 29 (Dates of Time Lost During This Period) shows he had time lost from 19 December 2002 through 30 April 2003.

7.  On 27 January 2009, the applicant submitted a DD Form 293 (Application for the 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 under other than honorable conditions discharge to under honorable conditions.  On 9 September 2009, the ADRB, after careful consideration of the applicant's military records and all other available evidence, determined the applicant's discharge was proper and equitable.  The ADRB also found that the applicant was appropriately assigned an RE code of "4" at the time of his discharge.  Accordingly, the applicant's request was denied and he was notified of the ADRB's decision.  He was also advised that an RE code of "4" cannot be waived and that he is no longer eligible to reenter the military.

8.  The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the Uniform Code of Military Justice.  A punitive discharge is authorized for offenses under Article 86 for periods of AWOL in excess of 30 days.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel:

	a.  The Glossary, section II (Terms), states that for Regular Army Soldiers, entry-level status is the first 180 days of continuous active duty or the first
180 days of continuous active duty following a break of more than 92 days of active military service.

	    (1)  For Reserve component Soldiers, entry-level status begins upon enlistment in the Army National Guard or U.S. Army Reserve.  For Soldiers ordered to initial active duty for training (IADT) for one continuous period, it terminates 180 days after beginning training.

	    (2)  For Soldiers ordered to IADT for the split or alternate training option, it terminates 90 days after beginning Phase II (Advanced Individual Training).  Soldiers who completed Phase I (Basic Combat Training) remain entry-level status until 90 days after beginning Phase II.

   b.  Chapter 10 of the 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.

   c.  Chapter 3, paragraph 3–9, provides for uncharacterized separations and states a separation will be described as entry-level with service uncharacterized if processing is initiated while a Soldier is in entry-level status, except when a characterization of under other than honorable conditions is authorized under the reason for separation and is warranted by the circumstances of the case.

10.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides 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 identifies the SPD code of "KFS" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.

11.  The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "KFS" will be assigned an RE Code of 4.

12.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program), in pertinent part, provides 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.  The RE Code of 4 applies to persons separated from their last period of service with a nonwaivable disqualification and who are ineligible for enlistment.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his under other than honorable conditions discharge should be changed to an uncharacterized discharge because he was in an entry-level status at the time of his discharge.  As a result of this correction, his RE code should then be changed to allow him to reenter the U.S. Army.

2.  In the absence of evidence to the contrary, it is presumed that the applicant's separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was voluntary and administratively correct.  It is also presumed that all requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process and that the offense that led to the discharge outweighs his overall record.  Therefore, considering all the facts of the case his characterization of service is appropriate.

3.  The applicant's contentions were carefully considered.  

   a.  The governing Army regulation provides that a separation will be described as entry-level with service uncharacterized if processing is initiated while a Soldier is in entry-level status, except when a characterization of under other than honorable conditions is authorized under the reason for separation and is warranted by the circumstances of the case.

   b.  The quality of the applicant's service during the period of service under review clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Thus, the character of service he was assigned at the time of his discharge was both appropriate and authorized.
Therefore, there is no basis for changing the characterization of his service.

	c.  Records show the applicant's assigned RE Code of 4 is appropriate based on the authority and reason for his discharge.  Therefore, there is no basis for changing the applicant's RE Code.


4.  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 this 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)                                         AR20100000115



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)