IN THE CASE OF:	  

		BOARD DATE:	  5 April 2012

		DOCKET NUMBER:  AR20110020416 


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 reconsideration of his previous request to change his reentry (RE) code from "4" to "3."

2.  He states before he went absent without leave (AWOL), his wife, whom he has since divorced, left him, and he was "at a reckless emotional state as any man would have been."  He has grown past his emotions and asks for reconsideration so he may reenter military service.  He is willing to do whatever it takes to rejoin.  

3.  He provides his divorce decree.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20100025407, on 14 April 2011.

2.  The applicant has submitted a new argument which was not previously considered by the Board.  The new argument warrants consideration at this time.

3.  The applicant enlisted in the Regular Army on 7 June 2007.  After completing initial entry training, he was awarded military occupational specialty 11B (Infantryman).  

4.  On 19 June 2009, he was charged with being AWOL from 21 March 2008 to 7 April 2009.  

5.  On 22 June 2009, he voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 10.  Prior to submitting his request, he was advised by counsel 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 an under other than honorable conditions discharge.

6.  In his voluntary request for discharge, he indicated he understood that by submitting the request he was acknowledging he was guilty of the charge against him or a lesser included offense which authorized imposition of a punitive discharge.  He acknowledged if his request were accepted he could receive an under other than honorable conditions discharge.  He further acknowledged he understood if he received an under other than honorable conditions discharge, 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, he could be deprived of his rights and benefits as a veteran under both Federal and State laws, and he could encounter substantial prejudice in civilian life.  

7.  He also acknowledged he had been advised he could submit statements in his own behalf to accompany his request for discharge.  The record does not show that he did so.

8.  On 2 July 2009, the separation authority approved his discharge and directed his service be characterized as under other than honorable conditions.   On 16 July 2009, he was discharged accordingly.  

9.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows in: 

* item 25 (Separation Authority) – "AR 635-200, chap 10"
* item 26 (Separation Code) – "KFS"
* item 27 (RE Code) – "4"
* item 28 (Narrative Reason for Separation) – "in lieu of trial by court-martial"

10.  He provides a divorce decree showing he was granted a divorce on 23 November 2009.  

11.  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.  

12.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPD codes to be used for these stated reasons.  The regulation states the reason for discharge based on separation code "KFS" is "in lieu of trial by court-martial" and the regulatory authority is Army Regulation 635-200, chapter 10.

13.  Army Regulation 635-200 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) 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 includes a list of the RE codes:

	a.  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 unless a waiver is granted.

	b.  RE-4 applies to Soldiers who are separated from their last period of service with a nonwaivable disqualification.  They are ineligible for enlistment.

14.  The SPD/RE Code Cross Reference Table, dated 15 June 2006, shows that Soldiers given an SPD code of "KFS" will be given an RE code of 4.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was charged with and admitted he was guilty of an offense that authorized the imposition of a punitive discharge and, rather than facing the court-martial charge, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  All requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  

2.  Had he elected to appear before a court-martial to face the charge against him, he would have had the opportunity to present evidence in his defense, such as his emotional state at the time he went AWOL and the fact that his wife had left him.  He gave up this opportunity by voluntarily requesting discharge for the good of the service in lieu of trial by court-martial.  

3.  RE code "4" is associated with discharges under the provisions of Army Regulation 635-200, chapter 10.  This RE code is properly shown on his DD Form 214.  

4.  His desire to reenter military service is noted.  However, this desire alone is insufficient reason to change an RE code properly assigned due to a properly approved voluntary request for discharge in lieu of trial by court-martial.  

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 to amend the decision of the ABCMR set forth in Docket Number AR20100025407, dated 14 April 2011.



      _________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)                                         AR20110020416





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ABCMR Record of Proceedings (cont)                                         AR20110020416



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