IN THE CASE OF:	  

		BOARD DATE:	  14 June 2011

		DOCKET NUMBER:  AR20100028157 


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 change of his reentry eligibility (RE) code of "4" to a more favorable reentry (RE) code.

2.  The applicant states he understands that his discharge was fair and equitable; however, he would like to have his RE code upgraded to allow him to serve and correct his records.  If allowed to serve, he realizes he would be starting from the ground floor.  He hopes that his service record prior to the incident along with his post-service record will allow him the opportunity to state his case in person.

3.  He further states that in December 2008 he became a Surveillance Agent for Station Casinos.  His duties include working with various Law Enforcement entities due to the type of criminals, to include suspected terrorists, that frequent the establishment.  He has also worked with the Gaming Control Board,
Las Vegas Metropolitan Police Department, Secret Service, and the Federal Bureau of Investigation.   He is a licensed skydiver with 73 jumps and he trains Brazilian Jiu Jitsu at least three times a week.  He believes that job performance is not everything and how you conduct yourself away from work also matters.  He had to change everything in order to be successful and he would like the opportunity to rectify [his mistakes].

4.  The applicant provides post-service employment appraisals.


CONSIDERATION OF EVIDENCE:

1.  Having had prior active service, the applicant enlisted in the Regular Army (RA) on 2 July 2002.  The highest rank/grade he held was sergeant (SGT)/E-5.

2.  On 28 March 2008, court-martial charges were preferred against the applicant for:

* one specification of committing an indecent assault upon a female Soldier, not his wife, on 29 June 2007, with the intent to gratify his sexual desires
* one specification of unlawful entry into the barracks room of the same female Soldier on 29 June 2007

3.  On 13 May 2008, he voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), chapter 10, for the good of the service - in lieu of trial by court-martial.  

4.  On 12 June 2008, the separation authority (a brigadier general) approved the applicant's voluntary request for discharge.  He directed the issuance of an under other than honorable conditions discharge and reduction to private (PV1)/E-1.  On 26 June 2008, the applicant was discharged accordingly.  

5.  His DD Form 214 shows he had completed 5 years, 11 months, and 25 days of creditable active military service during this period.

6.  Item 26 (Separation Code) shows the entry "KFS" and Item 27 (Reentry Code) shows the entry "4."

7.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides 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 states that the SPD code KFS is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, by reason of for the good of the service - in lieu of trial by court-martial.  The SPD/RE Code Cross 
Reference Table stipulates that an RE-4 code will be assigned to members separated under these provisions with an SPD code of KFS.   

8.  Army Regulation 635-200 further 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 RA and the U.S. Army Reserve (USAR).  Table 3-1 included 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 for enlistment unless a waiver is granted.

	c.  RE-4 applies to Soldiers who are separated from their last period of service with a nonwaivable disqualification.  They are ineligible for enlistment.

9.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  Paragraph 2-11 states applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests correction of his DD Form 214 to show a more favorable RE code.  He also requests a personal appearance to state his case.

2.  His record shows he was charged with the commission of offenses punishable under the Uniform Code of Military Justice 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.  Further, his discharge accurately reflects the character of his misconduct.

3.  The evidence of record further confirms his RE code was assigned based on his separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.  The RE code corresponding with this type of discharge is RE-4.  Therefore, he received the appropriate RE code based on the authority and narrative reason for separation.

4.  The applicant’s request for a personal appearance hearing was also carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision.  As a result, a personal appearance hearing is not warranted to serve the interest of equity and justice in this case.

5.  In view of the foregoing, there is no basis for granting his request.

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)                                         AR20100028157



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ABCMR Record of Proceedings (cont)                                         AR20100028157



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