IN THE CASE OF:	  

		BOARD DATE:	  3 November 2011

		DOCKET NUMBER:  AR20110005534 


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 his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to show a more favorable status in item 
26 (Separation Code (SPD)), and a 1 or 2 in item 27 (Reentry Code (RE code)).

2.  The applicant states that, in effect, his RE and SPD codes should be changed to a more favorable code because the Army Discharge Review Board (ADRB) unanimously recommended to upgrade his discharge to general under honorable conditions and to reinstate his rank to private first class (PFC/E-3).  Further, he contends that his upstanding character, the full support of his chain of command, and his unyielding devotion to be the best Soldier should be considered and he be allowed to reenlist.

3.  The applicant provides a self-authored statement, 3 letters of support, and a copy of his DD Form 214. 

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 2 January 2008.

2.  His records contain an undated Law Enforcement Report which shows on 
18 February 2009 the applicant was interviewed by the Sierra Vista Police Department (SVPD) and admitted he and PFC D were both intoxicated and engaged in consensual sexual intercourse at an unknown location.  He initially stated he could not remember where the incident took place but on 19 February 2009 he contacted the SVPD and admitted to being untruthful about not remembering where the incident occurred and stated it happened on Fort Huachuca, AZ.  He was subsequently cited for making a false report.  

3.  An undated Serious Incident Report states that on or about 20 February 2009, the applicant was accused of raping another Soldier on Fort Huachuca, AZ.  He was investigated by the Criminal Investigation Command (CID) and the accusation was proven false.  The applicant was cleared of charges levied by CID.  However, the SVPD charged him with making a false statement and he was found guilty of said charge on 12 March 2009.  This document contains another Soldier's name; however, that individual was discharged for a drug related incident; therefore, the analyst determined this report was specific to the applicant.

4.  On 23 June 2009, he was charged under the Uniform Code of Military Justice (UCMJ) with wrongfully serving alcoholic beverages to a person under 21 years of age and engaging in a sexual act, vaginal intercourse, with PFC D, who was substantially incapacitated.  He was advised of the basis of the contemplated trial by court-martial and the maximum permissible punishment authorized under the UCMJ; of the probable effects of an under other than honorable conditions (UOTHC) discharge if his request for discharge were approved; and of the procedures and rights available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge in lieu of trial by court-martial.  

5.  In his request for discharge, he acknowledged he had been advised of the implications attached to his discharge request and that by submitting the request; he was admitting guilt of the charge against him or of a lesser included offense contained therein which also authorized the imposition of a bad conduct or dishonorable discharge.  He also stated that moreover, under no circumstances did he desire further rehabilitation, for he had no desire to perform further military service.  He further acknowledged that if his discharge request were approved, he could be discharged UOTHC and that he understood the possible effects of receiving a UOTHC discharge and that as a result, he would 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 veterans under both Federal and State law.   

6.  On 1 September 2009, the separation authority approved the applicant's request for discharge in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200.  He also directed the applicant be issued a UOTHC discharge and that he be reduced to the lowest enlisted grade.  On 
10 September 2009, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time shows that based on the authority and reason for his discharge, he was assigned an SPD code of KFS and an RE code of 4.  

7.  On 24 September 2010, the ADRB determined the characterization of service was too harsh based on the circumstances surrounding the misconduct and the recommendations from his immediate commanders and as a result it was inequitable.  Accordingly, they granted relief in the form of an upgrade of the characterization of service to general, under honorable conditions and restored his rank to PFC.  However, the board determined the reason for the discharge was proper and equitable and voted not to change it.

8.  In his self-authored statement, the applicant contends that his civilian and military records show no misconduct and his post-service achievements should be considered.  He further contends his counsel did not support his expressed desire to pursue options to remain in the Army despite the full support of his chain of command.  He was pressured into complying with his request for a chapter 10 discharge because it was implied that the request had to be signed within 24 hours.  He relied on his counsel to develop, present, and pursue evidence that would support him continuing his career in the Army but his counsel failed to pursue alternate forms of discipline after informing him the Article 32 hearing results were favorable.  His current RE code does not take into account the accusations were made by an enlisted member whose character and conduct were questionable based on the following:

* Accuser lied about informing all parties involved that she was under the drinking age and intended to engage in underage drinking
* Accuser initiated the contact, was flirtatious and actively engaged in the sexual intercourse
* Accuser was coerced and coached by her fiancée and friends into filing charges in order to avoid the consequences on missing physical training and work formations

9.  He provided three letters of support from his chain of command and fellow Soldiers which attest to his good character, work ethic, and potential for future service.

10.  Army Regulation 635-200 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, at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A UOTHC discharge normally is appropriate for a Soldier who is discharged in lieu of trial by court-martial.  

11.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the U.S. Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of Armed Forces RE codes, including RA RE codes.  RE-4 applies to persons who have a nonwaivable disqualification.  

12.  Army Regulation 635-5-1 (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, the SPD code KFS is the appropriate code to assign to Soldiers separated under the provisions of chapter 10, Army Regulation 635-200, in lieu of trial by court-martial.  The Department of the Army SPD/RE Code Cross Reference Table stipulates that RE-4 code is the proper code to assign members separated under the provisions of chapter 10, Army Regulation 635-200 who were assigned an SPD code of KFS.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests his SPD code and RE Code on his DD Form 214 be changed to a more favorable status.

2.  Notwithstanding the ADRB's decision to upgrade the applicant's discharge to general, under honorable conditions, and restore his rank to PFC, the evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Although he now contends he was coerced into signing the request for discharge and his counsel failed to properly pursue alternate forms of punishment, the record shows that after consulting with defense counsel, he voluntarily requested discharge from the Army in lieu of trial by court-martial.  In his request for discharge, he admitted guilt to the charge against him or of a lesser included offense that also authorized the imposition of a bad conduct discharge.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

3.  The record further shows he indicated he had no desire for rehabilitation or to perform further military service.  He was properly assigned an SPD code of KFS and an RE code of 4 based on the authority and reason for his discharge and both remain valid even with the upgrade to the characterization of his discharge.  As a result, there is an insufficient evidentiary basis to support a change to the RE code or SPD code.

4.  In view of the above, his request should be denied.

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)                                         AR20110005534





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ABCMR Record of Proceedings (cont)                                         AR20110005534



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