BOARD DATE:	  9 September 2010

		DOCKET NUMBER:  AR20100008998 


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, in effect, an upgrade of his reentry eligibility (RE) code.

2.  The applicant states he left his unit to take care of his mother who was an invalid.  She needed someone to help her after his brother had abandoned her.  He states he was young and ignorant of the processes for emergency leave and financial assistance.  He states his only concern was for his mother's well being and after going home and getting her help, he turned himself in to military authorities.  He had hoped for a lesser punishment so that he could fulfill his military contractual obligation.  He states he knows of another Soldier who received a lesser punishment.

3.  The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 5 March 2008 and an interview sheet showing he returned to military control after departing absent without leave (AWOL) to take care of his invalid mother.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 15 May 2007 for a 3-year and 19-week period of service in pay grade E-3.  A review of his DA Form 3286 (Statement for Enlistment - U.S. Army Enlistment Program - U.S. Army Delayed Enlistment Program) shows he contracted for military occupational specialty 92W (Water Treatment Specialist).  The applicant completed his basic training requirements.
2.  The applicant was reported as AWOL on 13 October 2007 from Company U, 262nd Quartermaster Battalion, stationed at Fort Lee, VA.

3.  On 17 November 2007, the applicant surrendered to military authorities and returned to military control in Kirtland, NM.  He was taken to the Personnel Control Facility at Fort Sill, OK.

4.  Court-martial charges were preferred against the applicant on 20 November 2007 for being AWOL from 13 October to 17 November 2007, a violation of Article 86 of the Uniform Code of Military Justice (UCMJ).

5.  On 29 November 2007 during an interview with the applicant, the company commander of the Personnel Control Facility stated the applicant departed AWOL to care for his mother who was in a wheelchair because a younger brother would not take care of her.

6.  The applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a discharge under other than honorable conditions, and of the procedures and rights that were available to him.  The applicant then voluntarily requested discharge for the good of the service in lieu of trial by court-martial.

7.  In his request for discharge, the applicant indicated he understood that by requesting discharge he was admitting guilt to the charge against him or of a lesser-included offense that also authorized the imposition of a discharge under other than honorable conditions.  He further acknowledged he understood that if his discharge request were 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.  He elected not to submit statements on his own behalf and acknowledged that he received a copy of his request for discharge to include all enclosures.

8.  The applicant's company commander recommended discharge under the provisions of chapter 10, Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), in lieu of trial by court-martial.  She recommended he receive an uncharacterized discharge.

9.  The separation authority approved the applicant's discharge under the provisions of chapter 10 of Army Regulation 635-200 by reason of conduct triable by court-martial and directed that the applicant be issued an uncharacterized discharge on 15 February 2008.
10.  Accordingly, the applicant was discharged on 5 March 2008.  The DD Form 214 he was issued confirms he was discharged with an uncharacterized character of service.  Item 12c (Net Active Service This Period) of this form shows he completed a total of 8 months and 16 days of active military service.  Item 26 (Separation Code) shows the entry "KFS," item 27 (Reentry Code) shows the entry "4," and item 29 (Dates of Time Lost During this Period) shows the period 13 October 2007 to 17 November 2007.

11.  References:

	a.  The Manual for Courts-Martial Table of Maximum Punishments sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge (dishonorable discharge or bad conduct discharge) is authorized for an AWOL offense of 30 days or more.  Additionally, the maximum punishment for AWOL includes confinement of 12 to 18 months and a forfeiture of all pay and allowances.

	b.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 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.

	c.  Army Regulation 635-200, paragraph 3-9a(1), states a separation will be described as entry-level with service uncharacterized if processing is initiated while a Soldier is in an entry-level status, except when characterization under other than honorable conditions is authorized under the reason for separation and is warranted by the circumstances of the case.

	d.  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.

	e.  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.  RE codes are used for administrative purposes and are not to be considered derogatory in nature.  Simply, RE codes are used for identification of an enlistment processing procedure.

		(1)  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.

		(2)  RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at the time of separation, but the disqualification is waivable.  They are ineligible for enlistment unless a waiver is granted.

		(3)  RE-4 applies to Soldiers separated from their last period of active service with a nonwaivable disqualification.

	f.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides that the reasons for separating Soldiers from active duty and their corresponding SPD codes will be entered on the Soldiers' DD Forms 214.  It states that SPD code "KFS" is the appropriate code to assign to Soldiers who request discharge in lieu of trial by court-martial.

	g.  The SPD/RE Code Cross-Reference Table, dated 1 December 2000, shows the appropriate RE code for SPD code "KFS" is RE-4.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his RE code should be upgraded to a more favorable code so he can reenter military service.  He contends he departed AWOL to care for his wheelchair-bound mother because his brother had left her unattended.

2.  After a 35-day period of AWOL, the applicant turned himself in to military authorities and court-martial charges were preferred for his extended unauthorized absence.  In lieu of trial by court-martial, the applicant submitted a voluntary request for discharge from the Army after he consulted with legal counsel.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

3.  The applicant's RE code was assigned because he was separated under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  The only valid SPD permitted for separation under chapter 10 is "KFS" and the appropriate RE code associated with this type of SPD at the time of his discharge was RE-4.

4.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  In order to justify 


correction of a military record, the applicant must show 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.  Therefore, he 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)                                         AR20100008998



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)