IN THE CASE OF:	  

		BOARD DATE:	    21 September 2011

		DOCKET NUMBER:  AR20110004755 


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 under other than honorable condition (UOTHC) discharge to a general under honorable condition and also that his reentry eligibility (RE) code be changed from 4 to 2.

2.  The applicant states there is no reasonable explanation of why he received the discharge.

3.  The applicant does not provide any additional documents.

CONSIDERATION OF EVIDENCE:

1.  After having had prior service, the applicant enlisted in the Regular Army (RA) on 26 November 2007.  He was trained in, awarded, and served in military occupational specialty (MOS) 21C (Bridge Crewmember).  The highest rank/grade he attained while serving on active duty was private (PVT)/E-2.

2.  On 17 April 2008, the applicant was charged with being absent without leave (AWOL) from 4 January 2008 to 7 April 2008. 

3.  On 18 April 2008, the applicant consulted with legal counsel and he voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.  He was advised that he might be discharged under other than honorable conditions, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), that he might be deprived of his rights and benefits as a veteran under both Federal and State laws, and that he might expect to encounter substantial prejudice in civilian life if he was discharged UOTHC.  The applicant did not submit any statements on his own behalf.  

4.  The immediate commander recommended approval of the applicant's request for discharge with a UOTHC discharge.

5.  On 30 June 2008, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, with a UOTHC discharge and reduction to the lowest enlisted rank of PVT/E1.

6.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 21 July 2008 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial with issuance of an Undesirable Discharge Certificate.  He completed 9 months and 3 days of total active service and he had 95 days of lost time.

* item 26 (Separation Code) shows the entry "KFS"
* item 27 (RE Code) shows the entry "4"
* item 28 (Narrative Reason for Separation) shows the entry "in lieu of trial by court-martial"
* item 29 (Dates of Time Lost During This Period) shows the entry 20080104 - 20080407

7.  On 6 August 2009, the Army Discharge Review Board, after careful consideration, determined he was properly discharged and denied his request for discharge upgrade.

8.  The Manual for Courts-Martial Table of Maximum Punishments sets forth the maximum punishments for offenses chargeable under the Uniform Code of Military Justice (UCMJ).  A punitive discharge is authorized for offenses under Article 86 for periods of AWOL in excess of 30 days.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  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.  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 VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  A discharge UOTCH is normally given to an individual who was discharged for the good of the Service.

	b.  Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	c.  Paragraph 3-7b provides that a general discharge under honorable conditions is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

10.  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, chapter 10, by reason of for the good of the service - in lieu of court-martial.  The SPD/RE Code Cross Reference Table, in effect at the time, stipulates that an RE-4 code will be assigned to members separated under these provisions with an SPD code of KFS.  Currently, Soldiers with an SPD of KFS are assigned an RE-4 code.

11.  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), in effect at the time, 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.

	d.  RE-2 is no longer used (effective 1995).

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was voluntary and administratively correct.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Moreover, the offense that led to his discharge outweighs his overall record. 

2.  The RE-4 code assigned to the applicant was the proper code to assign members separating under the provisions of Army Regulation 635-200,
chapter 10.  The evidence of record confirms that the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  After consulting with defense counsel, he voluntarily requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Therefore, there is no evidence nor has the applicant presented any evidence to warrant relief.  As a result, the RE-4 code was appropriate at the time of his discharge.

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)                                         AR20110004755



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ABCMR Record of Proceedings (cont)                                         AR20110004755



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