IN THE CASE OF:	  

		BOARD DATE:	  23 November 2010

		DOCKET NUMBER:  AR20100013354 


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 his discharge characterization and the reason for his discharge be changed to an uncharacterized discharge.  He also requests his reentry eligibility (RE) code be changed to RE-3.

2.  The applicant states that he was discharged from the Army National Guard (ARNG) with an RE code of 3 and his service was uncharacterized.  He states that based on information from the ARNG, his active duty DD Form 214 (Certificate of Release or Discharge from Active Duty) should also be an uncharacterized discharge.  He states that he received a discharge characterization of under other than honorable conditions with an RE code of 4 due to a severe administrative breakdown and lack of legal representation.  He states an RE-4 is normally given to Soldiers who agree to be discharged under the provisions of chapter 10, Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), in lieu of trial by court-martial.  He states he should not have accepted this type of discharge since his ARNG unit had already separated him with an uncharacterized discharge and given him an RE-3.

3.  The applicant provides the following documentary evidence in support of his application:

	a.  DD Form 214 with a separation date of 31 July 2002;

	b.  National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) with a separation date of 21 June 2001;

	c.  Connecticut ARNG Orders 063-036, dated 4 April 2002; and

	d.  an undated memorandum from the New Hampshire ARNG.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Connecticut ARNG on 20 April 2001.  Prior to attending initial entry training, he was discharged from the Connecticut ARNG and as a Reserve of the Army on 21 June 2001.  He received an NGB Form     22 that shows he served 2 months and 2 days in the Connecticut ARNG.  This discharge was uncharacterized and he was assigned an RE-3.

2.  The applicant apparently enlisted in the U.S. Army Reserve (USAR) on 20 June 2001.  He reported for his initial entry training; however, he did not complete this required training.  His service record contains a DA Forms 4187 (Personnel Action) showing he was reported absent without leave on 23 June 2001 and then dropped from the rolls.  He returned to duty on 26 June 2002.

3.  The applicant's service record is devoid of any disciplinary history under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) or records of court-martial.

4.  The applicant's separation packet and the complete facts and circumstances pertaining to his discharge are not available for the Board's review.  However, his DD Form 214 shows he was discharged on 31 July 2002 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  This DD Form 214 shows he completed 1 month and 8 days of net active service with time lost under the provisions of Title 10, U.S. Code, section 972, from 23 June 2001 to 26 June 2002.  His total time lost was 368 days with his characterization of service as under other than honorable conditions.  Item 26 (Separation Code) shows the entry "KFS" and item 27 (Reentry Code) shows the entry "4."

5.  By unanimous vote, the Army Discharge Review Board denied the applicant's request to upgrade his discharge on 11 February 2009.  That board determined the applicant's discharge was proper and equitable with his discharge properly reflecting his service characterization as under other than honorable conditions.

6.  As evidence to support his application, the applicant provided his ARNG discharge orders and NGB Form 22 showing he was discharged on 21 June 2001 with an uncharacterized discharge.  In addition, he provided a copy of a memorandum addressed to him from the New Hampshire ARNG Recruiting and Retention Command.  The purpose of this memorandum was to explain his ineligibility to enlist in the ARNG and to provide a basis for an RE code upgrade.  

7.  As a result of his RE-4, he was told he was ineligible to enlist in the ARNG based on regulatory guidance.  The memorandum states:

(Applicant) should have been separated for 'entry level performance and conduct' or 'unsatisfactory participation.'  Either way, he should have received an RE-3 code which would make him eligible for an enlistment waiver.  Again, that's how I believe he should have been separated, but absence without leave does include other criteria.

In short, considering the circumstances of (Applicant's) AWOL status, the timeliness of the discharge, the contradictory characterization of service and RE code, I believe there was a severe administrative breakdown issuing his DD Form 214 and his RE code should be upgraded to 3 at the earliest convenience or before.

8.  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), confinement for 12 to 18 months, and a forfeiture of all pay and allowances are authorized for AWOL of 30 days or more.

	b.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  In that request, the Soldier must admit guilt to the charge(s) against him/her or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of Department of Veterans Affairs' benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An under other than honorable conditions discharge would normally be furnished to an individual who was discharged for the good of the service.

	c.  Army Regulation 635-200, paragraph 3-9a(1), states that 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 his discharge and the reason for discharge as shown on his DD Form 214 should be changed to uncharacterized.  He also contends his RE code should be changed to RE-3.

2.  After his uncharacterized discharge from the Connecticut ARNG based on his serving only 2 months and 2 days of his ARNG enlistment contract, it appears he enlisted in the USAR.  During his initial entry training, he went AWOL for more than 30 days.  This act is a violation of the UCMJ with a maximum punishment of a dishonorable discharge or a bad conduct discharge, confinement for 12 to 18 months, and forfeiture of pay and allowances.

3.  While he states his counsel was inadequate, he has not provided any compelling evidence to show this to be a true statement.  As required by Army regulation and in the absence of evidence to the contrary, it is presumed that he met with counsel and was advised of his rights to include the option to request a discharge or go to trial.  Based on his DD Form 214, he voluntarily elected a discharge under the provisions of Army Regulation 635-200, chapter 10.  This type of discharge is a voluntary request for discharge in lieu of trial by court-martial.

4.  As evidenced by his 368 days of lost time, the quality of the applicant's service did not meet the standards of acceptable conduct and performance expected of Army personnel.

5.  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."

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)                                         AR20100013354



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ABCMR Record of Proceedings (cont)                                         AR20100013354



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