IN THE CASE OF:	  

		BOARD DATE:	  19 October 2010

		DOCKET NUMBER:  AR20100011935 


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, through his Member of Congress, correction of his reentry eligibility (RE) code from RE-4 to RE-3.

2.  The applicant states his intentions have always been to make the military a career.  His issues started after arriving home during the 2008 Thanksgiving holiday to his pregnant wife.  He was due back to his unit on 29 November 2008 but chose to stay home.  He did not want to leave his wife by herself.  He subsequently made several phone calls and he and his wife were given conflicting information regarding his status.  His unit would not put him on extra leave without a Red Cross message and he could not get a Red Cross message because he was already home with his wife.  After learning he was reported in an absent without leave (AWOL) status, he decided not to go back to his unit.  He ultimately surrendered to military authorities and he requested a discharge in lieu of a court-martial. 

3.  The applicant provides the following documentary evidence:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Medical document of his wife's child birth
* Discharge orders

CONSIDERATION OF EVIDENCE:

1.  Having had prior service in the Kansas Army National Guard, the applicant's records show he enlisted in the Regular Army on 18 August 2008.  He subsequently completed basic combat training and he was reassigned to Aberdeen Proving Ground, MD, for completion of advanced individual training. The highest rank/grade he attained during this period of military service was private first class/E-3.  

2.  On 2 December 2008, he departed his unit in an AWOL status and on 3 January 2009, he was dropped from the Army rolls as a deserter.  He was apprehended by civil authorities in Tonganoxie, KS, and returned to military control on 6 February 2009.  He was assigned or attached to Fort Sill, OK, for administrative actions.

3.  On 12 February 2009, court-martial charges were preferred against the applicant for one specification of being AWOL from on or about 2 December 2008 to on or about 6 February 2009.  

4.  On 12 February 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).

5.  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 he understood that 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 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.  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."

6.  On 5 March 2009, his immediate commander recommended approval of the applicant's discharge with the issuance of an under other than honorable conditions discharge. 

7.  On 3 April 2009, the separation authority approved the applicant's voluntary request for discharge for the good of the service in lieu of a court-martial in accordance with chapter 10 of Army Regulation 635-200 and directed he receive an under other than honorable conditions discharge and be reduced the lowest enlisted grade.  On 27 April 2009, the applicant was accordingly discharged.

8.  The DD Form 214 he was issued shows he was discharged for the good of the service in lieu of a trial by court-martial with a character of service of under other than honorable conditions.  This form further confirms he completed 6 months and 5 days of creditable active military service during this period and he had 67 days of lost time.  Item 26 (Separation Code) of this form shows the entry "KFS" and item 27 (Reentry Code) shows the entry "RE-4."

9.  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.

10.  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.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the U.S. Army Reserve.  Table 3-1 includes a list of the Regular Army 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 their last period of service with a nonwaivable disqualification.

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

12.  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 KFS has a corresponding RE code 4.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his RE-4 should be upgraded so he may reenter military service.

2.  His 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 his RE code was assigned based on the fact that he was separated 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 RE-4.  Therefore, he received the appropriate RE code associated with his discharge.

4.  The challenges he described in relation to his spouse and the birth of his child are noted; however, there were other legitimate avenues he could have used to resolve these issues had he chosen to use them.  Nevertheless, his DD Form 214 shows the appropriate RE code and did not submit any evidence that the RE code is in error or unjust.  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)                                         AR20100011935



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ABCMR Record of Proceedings (cont)                                         AR20100011935



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