BOARD DATE:	  31 May 2011

		DOCKET NUMBER:  AR20100029009


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, in effect:

* upgrade of his discharge, from under other than honorable conditions to general, under honorable conditions
* upgrade of his reentry eligibility (RE) code, from RE-4 to RE-3

2.  The applicant states that at the time of his service he was not in the right state of mind and was scared, homesick, alone, and just wanted to be with his family.  He states he has since gotten married and lives on his own.  He further states he is going to church, working fulltime, and attending counseling.  He concludes by stating that he is trying to be a better citizen, and he wishes to reenter military service so he can teach other Soldiers the lessons he has learned. 

3.  The applicant provides the following evidence:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* a business card from Crossroads Counseling
* a pay stub from Sunlight Supply Inc., in the applicant's name

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he enlisted in the Regular Army on 5 May 2004. He completed training and he was awarded military occupational specialty 11B (Infantryman).  
2.  On 21 December 2005, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for wrongfully appropriating an Automated Teller Machine card, property other than military property, and wrongfully appropriating money of a value of more than $500.00, on or about 1 September 2005.  

3.  On 29 August 2006, court-martial charges were preferred against the applicant for one specification of wrongful appropriation, for stealing checks belonging to another Soldier, and for one specification of forgery, with intent to defraud, on or about 13 March 2006.  

4.  On 5 October 2006, he accepted NJP under the provisions of Article 15, UCMJ, for disrespecting a senior noncommissioned officer (NCO), on or about 22 September 2006.  

5.  On 29 November 2006, 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 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 (Active Duty Enlisted Administrative Separations).

6.  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 (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  

7.  On 4 December 2006, the separation authority approved his voluntary request for discharge 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.  

8.  On 8 December 2006, he was discharged in lieu of a trial by court-martial with a character of service of under other than honorable conditions.  He completed   2 years, 7 months, and 4 days of net active military service during this period.  Item 26 (Separation Code) of this form shows the entry "KFS" and item 27 (Reentry Code) shows the entry "RE-4."

9.  On 26 September 2008, the Army Discharge Review Board (ADRB) reviewed his request for upgrade of his under other than honorable conditions discharge.  After careful consideration the ADRB determined the reason for his discharge and the characterization of his service were both proper and equitable and voted to deny relief.

10.  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.

11.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

12.  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.
13.  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.  

14.  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's request for an upgrade of his discharge and 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 offenses 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.  

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 (being scared, homesick, alone, wanting to be with his family) are noted; however, these challenges do not diminish the seriousness of the offenses he committed.  

5.  In view of the foregoing, there is no basis for relief in this case.






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)                                         AR20100029009



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