IN THE CASE OF:
BOARD DATE: 1 JULY 2010
DOCKET NUMBER: AR20100000561
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 reentry eligibility (RE) code be changed to a code that will allow him to reenter the service.
2. The applicant states, in effect, that he believes he deserves a second chance because he did not do anything so bad that he does not deserve a second chance to get his career back.
3. The applicant provides a one-page statement, documents from his congressional representative, and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the North Carolina Army National Guard on 20 June 2003 for a period of 8 years. He successfully completed his training as a human resources specialist and was returned to his Army National Guard unit.
2. On 15 January 2004, he was ordered to active duty as a member of his unit in support of Operation Iraqi Freedom and he deployed to Iraq from 28 February 2004 to 28 January 2005. On 3 May 2005, he was honorably released from active duty.
3. On 20 April 2006, he enlisted in the Regular Army in Houston, Texas, in the pay grade of E-4 for a period of 3 years and 2 weeks in the military occupational specialty of human resources specialist and was assigned to Fort Hood, Texas.
4. On 12 September 2006, nonjudicial punishment was imposed against the applicant for being disrespectful in language towards a superior commissioned officer and for the wrongful possession of marijuana. His punishment consisted of a reduction to the pay grade of E-1, extra duty, and a forfeiture of pay (suspended and to be automatically remitted if not vacated before 12 March 2007). On 8 November 2006, the suspension was vacated.
5. On 22 November 2006, charges were preferred against the applicant for two specifications of failure to go to his place of duty, willfully disobeying the orders of a warrant officer, disrespect towards a superior noncommissioned officer, willfully disobeying a noncommissioned officer, willful dereliction of duty (two specifications), and failure to obey a regulation (failure to register and properly store his personal firearm).
6. On 5 December 2006, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, in lieu of trial by court-martial. In his request he indicated he understood the charges that had been preferred against him, that he was making the request of his own free will without coercion from anyone, and that he was aware of the implications attached to his request. He also admitted he was guilty of the charges against him or of lesser included offenses which authorized the imposition of a bad conduct or dishonorable discharge. He acknowledged he understood he could receive a discharge under other than honorable conditions and that he might be deprived of all benefits as a result of such a discharge. He further elected to not to submit a statement in his own behalf.
7. The appropriate authority (a brigadier general) approved his request on 8 December 2006 and directed that he be discharged under other than honorable conditions.
8. Accordingly, he was discharged under other than honorable conditions on 26 December 2006 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. He had served 7 months and 27 days of active service during his Regular Army enlistment. He was issued a separation code of KFS to indicate discharge in lieu of trial by court-martial and an RE code of 4. He was over 22 years of age at the time of his discharge.
9. In January 2009, the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge and a change of his RE code. He was granted a personal appearance before the ADRB Travel Panel in Atlanta, Georgia, on 22 April 2009. The ADRB found his discharge was too harsh when considering his combat service and as a result was inequitable. On 14 May 2009, the ADRB voted unanimously to upgrade his discharge to a general discharge and voted unanimously to deny his request to change both the reason for his discharge and his RE code.
10. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of the 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 at any time after charges have been preferred. A condition of submitting such a request is that the individual concerned must admit guilt to the charges against him or her or of a lesser included offense which authorizes the imposition of a bad conduct or dishonorable discharge and he or she must indicate that he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive. A discharge under other than honorable conditions is normally considered appropriate.
11. Pertinent Army Regulations provide that prior to discharge or release from active duty, individuals will be assigned RE codes based on their service records or reason for discharge. Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army, U.S. Army Reserve, and Army National Guard. Chapter 3 of that regulation prescribes basic eligibility for prior-service applicants for enlistment and includes a list of Armed Forces RE codes.
12. RE-4 indicates a person is not qualified for continued Army service by virtue of being separated from the service with a nonwaivable disqualification. The applicable regulations direct that an RE code of 4 be issued for a separation code of KFS.
DISCUSSION AND CONCLUSIONS:
1. Notwithstanding the actions by the ADRB, 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. Accordingly, the type of discharge directed and the reasons were appropriate considering all of the available facts of the case.
2. The applicant was separated per his request under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial and was properly issued a separation code of KFS and an RE code of 4 in accordance with the applicable regulations.
3. He voluntarily submitted his request for discharge in lieu of trial by court-martial and admitted guilt to the charges against him to avoid having a felony conviction in his records. As a result, he was fully aware of the type of discharge and the reasons for which he was being discharged.
4. The applicant has failed to show through the evidence submitted or the evidence of record that he was issued the wrong RE code at the time of his separation.
5. 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.
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) AR20100000561
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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