IN THE CASE OF:	  

		BOARD DATE:	  10 November 2011

		DOCKET NUMBER:  AR20110010531 


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 to have his reentry eligibility (RE) code as shown on his DD Form 214 (Certificate of Release or Discharge from Active Duty) changed so he can enlist and continue his military career.

2.  The applicant states:

	a.  Court-martial charges were initiated against him in 2007 while he held the rank of staff sergeant (SSG).  His attorney made it clear to him that the new brigade commander was trying to set an example.  Although he knew in his heart and mind that he would not be found guilty, as a father and criminal justice major in college he was unwilling to risk a conviction by court-martial.  He requested a discharge under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 10, on the advice of his attorney.  His request was approved and he was discharged in February 2008 in the rank of private with an under other than honorable conditions character of service.

	b.  In September 2009, his discharge was upgraded to under honorable conditions by the Army Discharge Review Board (ADRB) and his rank was restored to SSG.  The Board determined the characterization of his service was inequitable as it was too harsh; however, his RE code was not changed.  He made one careless mistake and cooperated fully with the investigation – and his entire military career was over.  He does not believe he was treated fairly and does not believe his right to serve his country and lead Soldiers should be denied to him forever.  As the ADRB upgraded his character of service, it is only fair to allow him to continue his military career.

3.  The applicant provides the final page of his ADRB case report showing the board decision.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army on 6 July 2000 and he held military occupational specialty 13P (Multiple Launch Rocket System Operations/Fire Direction Specialist).  He was promoted to the rank/grade of SSG/E-6 on 1 June 2006.  He was assigned to the 3rd Battalion, 27th Field Artillery Regiment, Fort Bragg, NC.

2.  On 16 November 2007, court-martial charges were preferred against him for stealing U.S. Government equipment comprised of 12 amplifiers, 2 intercommunications sets, and 1 amplifier adapter.

3.  On 23 January 2008, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a discharge under other than honorable conditions, and of the procedures and rights available to him.  Subsequent to receiving this legal counsel, 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, chapter 10.

4.  In his request for discharge, he indicated he understood that by requesting discharge, he was admitting guilt to the charge against him or to a lesser-included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood if his discharge request were approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also stated, "under no circumstances do I desire further rehabilitation for I have no desire to perform further military service."

5.  The separation authority subsequently approved the applicant's request for discharge for the good of the service in lieu of trial by court-martial.  He was reduced to the rank of private/E-1 and discharged accordingly under other than honorable conditions on 11 February 2008.  He completed 7 years, 7 months, and 6 days of active service.

6.  On 11 September 2009, the ADRB approved his request for an upgrade of his discharge but determined the reason for his discharge was proper and voted not to change it.  The ADRB determined the characterization of his service was too harsh and voted to grant relief in the form of an upgrade to under honorable conditions and to restore his rank to SSG.

7.  His re-issued DD Form 214 shows he was discharged in lieu of trial by court-martial in the rank/grade of SSG/E-6 on 11 February 2008 under the provisions of Army Regulation 635-200, chapter 10, with a character of service of under honorable conditions (general).  This DD Form 214 shows a separation program designator (SPD) code of "KFS" and an RE code of "4."

8.  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 that SPD code KFS is the appropriate code to assign to Soldiers discharged in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  The SPD/RE Code Cross Reference Table stipulates that RE code 4 will be assigned to members separated with an SPD code of KFS.

9.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army, U.S. Army Reserve, and Army National Guard.  Table 3-1 (U.S. Army Reentry Eligibility Codes) lists RE codes as follows:

	a.  RE-1 applies to Soldiers completing their terms 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 active service at the 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 active service with a nonwaivable disqualification and are ineligible for enlistment.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  As such, he voluntarily requested a discharge to avoid a trial by court-martial.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

2.  The evidence of record also shows that when the ADRB upgraded the applicant's discharge, the board determined the reason for the discharge was proper and equitable and voted not to change it.  The RE code he was assigned was based on his discharge in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, with an SPD code of KFS.  This is the only RE code permitted with SPD code KFS.

3.  In view of the foregoing, he is not entitled to the requested relief.

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)                                         AR20110010531



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ABCMR Record of Proceedings (cont)                                         AR20110010531



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