IN THE CASE OF:	  

		BOARD DATE:	  20 July 2010

		DOCKET NUMBER:  AR20100001198 


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
a 4 to a more favorable code so he can reenlist.

2.  The applicant states he feels his RE code is unjust because he needed to leave.  His wife was very ill and had an unstable living condition.  She was almost homeless and he needed to go back and take care of her.  He knows that he made a mistake but feels the Army is the life he would want to have.  He wants to go back in and serve and make his family proud. 

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 20 January 2009.  He was subsequently assigned to the 1st Battalion, 330th Infantry Regiment, Fort Benning, GA, for completion of basic combat training.

2.  On 27 April 2009, he departed his training unit in an absent without leave (AWOL) status and he was subsequently dropped from the rolls of the Army on 27 May 2009.  He returned to military control on 29 May 2009.


3.  On 30 May 2009, he again departed his training unit in an AWOL status and was subsequently dropped from the rolls of the Army on the same date.  He was apprehended by civil authorities in Dale City, CA, on 24 June 2009 and was returned to military control at Fort Sill, OK, on 1 July 2009. 

4.  On 3 July 2009, his command preferred court-martial charges against him for two periods of AWOL.   

5.  On 10 July 2009, 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 Uniform Code of Military Justice (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).

6.  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 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 (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  

7.  In his request, he further indicated that he did not desire a physical evaluation prior to separation.  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."

8.  On 10 July 2009, the applicant's company first sergeant interviewed him in an attempt to determine the reason for his absence.  The applicant indicated that he had some personal and family problems and he could not adjust to the military.

9.  On 29 July 2009, his immediate commander recommended approval of the applicant's request for discharge with the issuance of an under other than honorable conditions discharge.

10.  On 9 August 2009, 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 that he be issued an under other than honorable conditions discharge and that he be reduced to the lowest enlisted grade.   

11.  On 24 August 2009, he was accordingly discharged.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he completed 5 months and 7 days of creditable active military service and he had 59 days of lost time.  Item 26 (Separation Code) of this form shows the entry "KFS" and item 27 shows the entry "4." 

12.  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 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.

13.  Army Regulation 635-200 states, in pertinent part, 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.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program), covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the US Army Reserve.  Table 3-1 includes a list of the Regular Army Reenlistment Eligibility Codes (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.

14.  Army Regulation 635-5-1 (Separation Program Designator Codes (SPD)) states SPD codes are three-character alphabetic combinations which identify reasons for, and types of, separation from active duty.  The "KFS" SPD code is the correct code for Soldiers separating under chapter 10 of Army Regulation 635-200.  

15.  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 an offense 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 a 4.  Therefore, he received the appropriate RE code associated with his discharge.

4.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  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 this 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)                                         AR20100001198



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ABCMR Record of Proceedings (cont)                                         AR20100001198



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