IN THE CASE OF:	  

		BOARD DATE:	  1 November 2011

		DOCKET NUMBER:  AR20110009896 


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 a change of his reentry eligibility (RE) code to RE-1A.  He also indicates he desires to appear before the Board.

2.  He states he was very young and very unwise when he enlisted.  He had just turned 18 and his understanding of responsibility lacked depth.  He believed his grandmother was going to die.  He reacted emotionally and recklessly without regard for future circumstances.  He did not have a mother or father growing up and his grandmother was the only family member he had, so he left to go to her side.  He discussed the situation with his first sergeant who was unaffected by his situation.  That was his breaking point.

3.  He states his first sergeant simply did not want to deal with his situation.  He asked his first sergeant to elevate the problem to the company commander and the first sergeant refused.  The first sergeant refused even to let him speak with a chaplain.  He believes the situation could have been handled correctly if the first sergeant would have followed policy instead of disregarding the situation.  He puts the blame on the first sergeant for the first sergeant's disregard and the rest of the blame on himself for leaving the way he did.

4.  He concludes by stating he wishes to do what is necessary to "make it right" and continue to pursue his goal of service to the nation.

5.  He provides no additional evidence.



CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 20 September 2007 at 18 years, 10 months, and 23 days of age.

2.  A DD Form 458 (Charge Sheet) shows he was charged with being absent without leave (AWOL) from on or about 1 September 2008 to on or about 5 February 2009.

3.  On 12 February 2009, he was interviewed by a first sergeant at the Personnel Control Facility, Fort Sill, OK.  He was asked why he was AWOL and he stated his family had extreme medical problems and he felt obligated to be with them.  He indicated he did not request to remain on active duty.

4.  On 12 February 2009, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 10.  Prior to submitting his request, he consulted with legal counsel and was advised of the basis for his contemplated trial by court-martial, the maximum possible punishment authorized under the Uniform Code of Military Justice, and the possible effects of a discharge under other than honorable conditions.

5.  In his voluntary request for discharge, he acknowledged he understood if his request were accepted he could be discharged under other than honorable conditions.  He acknowledged he was guilty of the charge against him or of a lesser-included offense and stated he did not desire to perform further military service.  He further acknowledged he understood if he received a discharge under other than honorable conditions, he could be deprived of many or all Army benefits, be ineligible for many or all benefits administered by the Department of Veterans Affairs, be deprived of his rights and benefits as a veteran under both Federal and State laws, and encounter substantial prejudice in civilian life.

6.  On 3 April 2009, the separation authority approved his request and directed his discharge under other than honorable conditions.  On 27 April 2009, he was discharged accordingly.

7.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 1 year, 2 months, and 3 days of active service with 158 days of lost time.  Item 25 (Separation Authority) shows "Army Regulation 
635-200, chapter 10"; item 26 (Separation Code) shows "KFS"; and item 27 (Reentry Code) shows "4."

8.  On 4 March 2011, he was informed that the Army Discharge Review Board (ADRB) had granted him partial relief in the form of an upgrade of his characterization of service to general under honorable conditions.  The ADRB found the reason for his discharge was both proper and equitable and voted not to change it.

9.  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.

10.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribes the specific authorities (statutory or other directives), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  The regulation provides that SPD code KFS applies to Soldiers voluntarily discharged in lieu of trial by court-martial under the provisions Army Regulation 635-200, chapter 10.

11.  The SPD/RE Code Cross-Reference Table provides instructions for determining the RE code for Active and Reserve Component Soldiers.  The table in effect at the time, dated 15 June 2006, shows SPD code KFS has a corresponding RE code 4.

12.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) states RE code 4 applies to individuals separated from their last period of service with a nonwaivable disqualification.  Individuals assigned RE code 4 are ineligible for enlistment.

13.  Army Regulation 15-185 governs operations of the ABCMR.  Paragraph 2-11 of this regulation states that applicants do not have a right to a hearing before the ABCMR.  The regulation provides that the Director of the ABCMR or the ABCMR may grant a formal hearing before which the applicant, counsel, and witnesses may appear whenever justice requires. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's desire to appear before the Board was carefully considered.  However, there is sufficient evidence available for a fair and impartial consideration of his case without such an appearance.
2.  The evidence of record does not show and the applicant has not provided evidence to show error, injustice, or inequity in the RE code shown on his DD Form 214.

3.  Because he was separated under the provisions of Army Regulation 635-200, chapter 10, he was properly assigned RE code 4.

4.  His desire to reenter military service and the ADRB's decision to upgrade his discharge are noted.  However, the fact remains that he admitted he was guilty of an offense punishable under the UCMJ with a punitive discharge and voluntarily requested discharge in lieu of trial by court-martial.  While a court-martial may have imposed punishment more severe than what resulted from his voluntary request for discharge, it is also possible a court-martial may have imposed a sentence that allowed him to continue in service.  The record shows he was aware of the consequences of his decision at the time.

5.  In view of the foregoing, there is no basis for granting the relief he requests.

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 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)                                         AR20110009896



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ABCMR Record of Proceedings (cont)                                         AR20110009896



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