BOARD DATE:	  14 October 2010

		DOCKET NUMBER:  AR20100009984 


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 an upgrade of his reentry eligibility (RE) code of 4 so he will be eligible to reenter the Army.

2.  He applicant states he believes his RE code was incorrectly processed along with his rank which he subsequently had corrected.  He also believes he was discriminated against due to being denied the opportunity to reenter the military, based on the people involved.

3.  He provides no documentary evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he enlisted in the Regular Army on 7 August 1996.  Upon completion of initial entry training he was awarded military occupational specialty 63J (Quartermaster and Chemical Equipment Repairer).

2.  His record contains a DD Form 458 (Charge Sheet), dated 8 March 2007, which shows he was charged with violation of the following Articles of the Uniform Code of Military Justice (UCMJ) for the Specifications shown:

	a.  Charge I - one Specification of Violation of Article 83:  he deliberately concealed that he was charged with larceny of government property, housebreaking, conspiracy, and false swearing by the U.S. Army.  He was charged with deposit account fraud by the State of Georgia and he procured himself to be enlisted as a specialist/E-4 in the U.S. Army, and did thereafter, receive pay and allowances under the enlistment so procured.

	b.  Charge II - Violation of Article 128:

		(1)  Specification 1:  on or about 22 November 2006, he committed an assault upon another Soldier (his wife at the time) with a means likely to produce death or grievous bodily harm by punching her in the stomach, head, and chest with a closed fist, kicking her in the stomach, back, face, and buttocks with a shod foot, pushing her head through a wall, throwing her body into a dresser, pulling her hair out of her scalp, strangling her with his hands, and brandishing an iron.

		(2)  Specification 2:  on or about 22 November 2006, he unlawfully pushed and threw a woman (not his wife).

	c.  Charge III - Violation of Article 134:

		(1)  Specification 1:  on or about 22 November 2006, he wrongfully communicated to another Soldier (his wife at the time) a threat to kill her.

		(2)  Specification 2:  on or about 22 November 2006, he wrongfully communicated to a woman (not his wife) a threat to kill her.

	d.  Charge IV - one Specification of Violation of Article 134 by unlawfully entering the dwelling of another person.

3.  On 9 April 2007, 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.  Following counseling, the applicant submitted a voluntary written request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations).  In his request for discharge the applicant acknowledged 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 bad conduct or dishonorable discharge.  He also acknowledged that he understood 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, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

4.  On 1 May 2007, the separation authority approved the applicant's request and directed that he be discharged under honorable conditions and issued a General Discharge Certificate.

5.  Item 24 (Character of Service) of the DD Form 214 (Certificate of Release of Discharge from Active Duty) issued to the applicant upon separation shows he was discharged under honorable conditions.  Item 25 (Separation Authority) indicates he was separated under the provisions of chapter 10 of Army Regulation 635-200.  The applicant's DD Form 214 also shows that based on the authority and reason for discharge he was assigned a Separation Program Designator (SPD) code of KFS in Item 26 (Separation Code) and an RE code of 4 in Item 27 (Reentry Code).

6.  On 10 March 2009, the President of the Army Discharge Review Board (ADRB) informed the applicant that after careful consideration of his military records and all other available evidence, the ADRB had determined that he was properly and equitably discharged.  Accordingly, his request for a change in the character and/or reason of his discharge was denied.  The ADRB also determined an administrative error occurred in the entering of his rank and pay grade on his DD Form 214 and directed that corrective action be taken.

7.  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.

8.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

9.  Army Regulation 635-5-1 (SPD Codes), in effect at the time of the applicant's separation, provided 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 stated, in pertinent part, that the SPD code KFS was the appropriate code to assign to Soldiers separated under the provisions of chapter 10 of Army Regulation 635-200 in lieu of trial by court-martial.  The SPD/RE Code Cross Reference Table indicated that RE code 4 was the proper code to assign members separated with SPD code KFS.

10.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the United States Army Reserve.  Chapter 3 of that regulation prescribes the basic eligibility for prior service applicants for enlistment.  This chapter includes a list of armed forces RE codes, including RA RE codes:

	a.  RE code 1 applies to persons who are considered fully qualified for reentry or continuous service at the time of separation;

	b.  RE code 3 applies to persons who are not considered fully qualified for reentry or continuous service at the time of separation, but the disqualification is waivable; and 

	c.  RE code 4 applies to persons separated from their last period of service with a nonwaivable disqualification.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his RE code should be changed so he will be eligible to reenter the Army was carefully considered and found to lack merit.

2.  His record shows he was charged with the commission of numerous offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 require an admission of guilt to the offenses charged and are voluntary requests for discharge in lieu of trial by court-martial.  The evidence shows he voluntarily requested discharge from the Army in lieu of trial by court-martial.

3.  The available evidence shows he was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no evidence of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

4.  The applicant was appropriately assigned the RE code of 4 at the time of discharge.  Therefore, he is not entitled to an upgraded of his RE code.

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)                                         AR20100009984



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)