IN THE CASE OF:	  

		BOARD DATE:	  29 September 2011

		DOCKET NUMBER:  AR20110004791 


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 reentry (RE) code be changed
* that his separation code be changed
* reinstatement with his time in service and time in grade effective the date of reentry
* restoration to the highest grade he held

2.  The applicant states, in effect, that:

* he was never absent without leave (AWOL) and was charged 15 days of leave
* he was unable to sign-out for leave because no one was in the office
* he was not allowed to submit evidence proving his innocence
* his punishment was too harsh
* he was never offered rehabilitation

3.  The applicant provides a witness statement and a copy of DD Form 214 (Certificate of Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he had a prior period of Regular Army (RA) service resulting in a general discharge between 16 November 1996 and 30 July 1996.  He served in military occupational specialty (MOS) 92Y (Unit Supply Specialist).  

2.  On 24 October 2000, the applicant again enlisted in the RA in MOS 92Y.  The highest rank/grade he attained while serving on active duty was staff sergeant/
E-6.

3.  On 23 February 2009, the applicant accepted punishment under the provisions of Article 15 of the Uniform Code of Military Justice for disobeying an order to sign out on leave.

4.  On 25 February 2009, the applicant was declared AWOL and on 26 March 2009, he was dropped from the rolls.

5.  On 18 September 2009, the applicant turned himself into military authorities.

6.  On 21 October 2009, charges were preferred against the applicant for being AWOL from 25 February through 18 September 2009.

7.  On 23 October 2009, after consulting with counsel, the applicant submitted a voluntary request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, for the good of the service - in lieu of court-martial.  In his request for discharge, he indicated he was making the request of his own free will without coercion from anyone and that he was aware of the implications attached to his request.  He acknowledged that he understood he could receive an under other than honorable conditions discharge, that he may be ineligible for all benefits administered by the Department of Veterans Affairs, and that he may be deprived of his rights and benefits as a veteran under both Federal and State laws as a result of such a discharge.  In addition, the applicant was advised he may expect to encounter substantial prejudice in civilian life if he was issued an under other than honorable conditions discharge.

8.  On 23 October 2009, the separation authority approved the applicant's discharge under the provisions of chapter 10, Army Regulation 635-200 and directed that he be issued an under other than honorable conditions discharge.  

9.  On 30 December 2009, the applicant was discharged accordingly.  The 
DD Form 214 he was issued at the time shows he held the rank/grade of private first class/E-1 and he had completed 8 years, 7 months, and 14 days of net active service during the period under review.

10.  His DD Form 214 shows in:

* item 26 (Separation Code) "KFS" 
* item 27 (Reentry Code) "4"
* item 28 (Narrative Reason for Separation) "in lieu of trial by court-martial" 

11.  On 28 January 2011, the President of the Army Discharge Review Board notified the applicant that the board reviewed his case and determined he was properly and equitably discharged; therefore, his request for an upgrade of his discharge was denied.

12.  The applicant provided a witness statement that indicates, in effect, the unit was going on block leave from 20 December 2008 through 4 January 2009 and the applicant was tasked with processing 24 sets of orders the day prior to block leave starting.  The applicant worked through lunch and through the evening until the battalion was closed.  He and the applicant were among the last to leave the unit.  He was in and out of the office because he was preparing to go to the Advanced Non-Commissioned Officer Course (ANCOC).  Therefore, he believes the applicant just forgot to sign out of the unit.  He also indicates he was attending ANCOC when the applicant was given an article 15 so he was unable to testify in his behalf.  However, he believes the applicant should be allowed to reenter the military because he would be an asset.

13.  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 at any time after the charges have been preferred.  At the time, a discharge under other than honorable conditions was normally considered appropriate.

14.  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, in pertinent part, that the SPD code of "KFS" is the appropriate code to assign to Soldiers who are discharged under the provisions of chapter 10 of Army Regulation 635-200.  The SPD/RE Code Cross Reference Table indicates the RE code of 4 is the proper code to assign members separated with an SPD code of "KFS."

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for a change of his narrative reason for separation, separation code, reentry code, and reinstatement in the highest grade that he held was carefully considered; however, there is insufficient evidence to support his request.

2.  The applicant was discharged for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200.  Discharges under the provisions of this chapter are voluntary requests for discharge 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.  Further, the applicant's discharge accurately reflects his overall record of service.

3.  There is no evidence that shows the applicant was not properly and equitably discharged in accordance with the regulations in effect at the time, and that all requirements of law and regulations were not met, or that the rights of the applicant were not fully protected throughout the separation process.  Absent such evidence, regularity must be presumed in this case.  His witness statement is insufficient to overcome this presumption.

4.  The applicant's record of service shows he received nonjudicial punishment on 23 February 2009, and he was AWOL during the period 25 February through 18 September 2009.

5.  Therefore, the type of discharge directed, the reason for separation, and the RE code assigned were appropriate considering all the facts of the case.  The record contains no evidence that the applicant was coerced or any indication of procedural or other errors that would have jeopardized his rights.  Therefore, there is no basis for granting the applicant's 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)                                         AR20110004791



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ABCMR Record of Proceedings (cont)                                         AR20110004791



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