IN THE CASE OF:	  

		BOARD DATE:	  29 March 2011

		DOCKET NUMBER:  AR20100021704 


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 that his reenlistment eligibility (RE) code be upgraded.

2.  The applicant states he wanted to be discharged so that he could care for his father.  Now that his father has passed on he wishes to return to the Army.

3.  The applicant provides a copy of his father's death certificate.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted on 16 September 2008 and completed basic infantry training.

2.  On 9 January 2009, while still in advanced individual training, the applicant went AWOL (absent without leave).

3.  He was apprehended by civilian police and returned to military control on 1 April 2009.

4.  On 13 April 2009, after consulting with counsel and being advised of his rights and options, the applicant submitted a formal request, under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) , chapter 10, for discharge for the good of the service (in lieu of trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge).  He acknowledged that he was guilty of the charges or lesser included charges and that, if the request was accepted, he could receive a discharge under other than honorable conditions and be furnished an Under Other Than Honorable Conditions (UOTHC) Discharge Certificate.  He acknowledged that such a discharge would deprive him of many or all of his benefits as a veteran, and that he could expect to experience substantial prejudice in civilian life if he received a UOTHC discharge.

5.  On 18 May 2009, the court-martial convening authority approved the request for separation and directed the applicant be reduced to the lowest enlisted grade and receive an UOTHC.

6.  On 27 May 2009, the applicant was discharged with a UOTHC, SPD of KFS, and an RE code of 4.  He had 5 months and 20 days of creditable service with 82 days of lost time.

7.  The applicant's father passed away on 21 July 2009 of chronic obstructive pulmonary disease due to chronic cigarette smoking.

8.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) 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 at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate. 

9.  The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for offenses under Article 86, for periods of AWOL in excess of 30 days.

10.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribes the specific authorities (regulatory or other directives), reasons for separating Soldiers from active duty, and the SPD codes to be entered on DD Form 214 (Certificate of Release or Discharge from Active Duty).  It indicates that a separation under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) , chapter 10 (in lieu of trial by court-martial) mandates an SPD of KFS.

11.  Army Regulation 601–210 (Regular Army and Army Reserve Enlistment Program) governs eligibility criteria, policies, and procedures for enlistment and processing of persons into the Regular Army and the U.S. Army Reserve for enlistment and reenlistment.  Included in this regulation is the SPD/RE Code Cross-Reference Table that indicates an SPD of KFS requires an RE code of 4.
12.  Army Regulation 601-280 (Army Retention Program) states that the RE codes contained on military discharge documents determine whether or not one may reenlist in a military service at a later time.  In general, those who receive an Army RE code of 1 may reenlist in the Army or another service with no problem.  Individuals with an Army RE code of 2 may usually reenlist in the Army or another service with various restrictions, or if the circumstances which resulted in the code no longer apply.  Individuals with an RE code of 3 can normally reenlist but will probably require a waiver to be processed.  Individuals with an Army RE code of 4 are normally not eligible to reenlist in the Army, nor join another service.  Further, an RE-4 applies to persons separated in pay grade E-2 and below.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states he wanted to be discharged so that he could care for his father.  Now that his father has passed on he wishes to return to the Army.

2.  A separation under Army Regulation 635-200, chapter 10 requires an SPD of KFS which in turn requires an RE code of 4.  In order to justify an RE code upgrade the reason for the applicant's discharge would have to be changed.

3.  The applicant has not provided and the record does not contain any evidence the applicant made his command aware of his father's condition and requested any type of dispensation prior to going AWOL.

4.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 10, for the good of the service, to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.

5.  Further, even if the applicant were to be granted a different SPD, he would still not be eligible for a different RE code in as much as he was discharged in pay grade E-1, that also requires an RE code of 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)                                         AR20100021704





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ABCMR Record of Proceedings (cont)                                         AR20100021704



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