IN THE CASE OF:	  

		BOARD DATE:	  24 March 2011

		DOCKET NUMBER:  AR20100022915


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 (RE) code.
  
2.  The applicant states, in effect:

* while out-processing at Fort Sill, OK, he and his first sergeant (1SG) agreed he would stay in the Army
* his 1SG informed him he was having a hard time finding him an alternate basic training site, that it could take a few weeks to resolve the issue, and he [the applicant] agreed to "stick it out"
* after 2 weeks, his 1SG informed him it might be best if he out-processed and re-joined the Army after he returned home
* he was not informed he would receive an RE code of 4
* the Judge Advocate General (JAG) officer was not honest and forthcoming, because she did not properly explain the ramifications of reentering the military with an RE code of 4
* he believes his 1SG made a legitimate mistake, not knowing he [the applicant] would receive an RE code of 4, but the JAG officer erred in not telling him he would not be able to reenter the Army with an RE code of 4
* if he had known he would receive an RE code of 4 and be prohibited from reentering the Army, he never would have signed his request for discharge

3.  The applicant provides 2 self-authored statements.


CONSIDERATION OF EVIDENCE:

1.  On 22 February 2007, the applicant enlisted in the Regular Army (RA), in the rank/grade of private/E1.  He was assigned to Fort Benning, GA for initial entry training.

2.  On 25 March 2007, he was reported absent without leave (AWOL).  On 
24 April 2007, he was dropped from the rolls of the Army.  He remained AWOL until he was returned to military control on 7 September 2007.  Court-martial charges were preferred against him for this period of AWOL.

3.  On 14 September 2007, he consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, he voluntarily requested discharge for the good of the service - in lieu of trial by court-martial.  In his request, he stated that under no circumstances did he desire further rehabilitation, for he had no desire to perform further military service.

4.  In his request for discharge, he 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 further acknowledged he understood that 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. 

5.  On 11 December 2007, the separation authority approved the applicant's request for discharge and directed he be issued an uncharacterized discharge.  On 16 January 2008, he was discharged accordingly, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  His         DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 5 months and 12 days of net active service this period.  He also had  5 months and 13 days of lost time due to being AWOL and in confinement, and  3 months and 5 days of time in an excess leave status.  This form also shows in:

* Item 26 (Separation Code) "KFS"
* Item 27 (Reentry Code) "4"


6.  On 18 August 2008, the Army Discharge Review Board (ADRB) reviewed his request for an upgrade of his uncharacterized discharge.  After careful consideration, the ADRB determined the reason for his discharge, the characterization of his service, and his corresponding RE code were proper and equitable and voted to deny relief.

7.  He provides 2 similar, self-authored statements, each essentially stating the circumstances surrounding his separation and his desire to re-join the Army.

8.  Army Regulation 635-200 (Personnel Separations) 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.

9.  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 U.S. Army Reserve.  This regulation provides 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.  Chapter 3 of this regulation prescribes basic eligibility for prior service applicants for enlistment, and includes a list of Armed Forces reentry codes, including RA RE codes.  Table 3-1 includes a list of the RA RE codes:

   a. 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;

   b. 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;

   c. RE-4 applies to Soldiers not qualified for continued service by virtue of being separated from the service with non-waivable disqualifications.

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

11.  The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers.  This cross reference table in effect at the time of his discharge shows the SPD code and a corresponding RE code.  The SPD code of "KFS" has a corresponding RE code of "4."

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his RE code was carefully considered; however, there is insufficient evidence to support his request.

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 Army Regulation 635-200, chapter 10, 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.  He stated in his request for discharge that under no circumstances did he desire to perform further military service.

3.  His RE code was assigned based on the fact that he was discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  Absent the court-martial charges, there was no fundamental reason for him to request a discharge from the Army.  The underlying reason for his discharge was his voluntary request in lieu of a court-martial.  The only valid narrative reason for separation permitted under this paragraph is "In Lieu of Court-Martial.  The appropriate SPD code is "KFS" and the corresponding RE code associated with this type of discharge is a "4."  Therefore, he received the appropriate RE code associated with his discharge and he is not entitled to the requested 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)                                         AR20090000724



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ABCMR Record of Proceedings (cont)                                         AR20100022915



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