IN THE CASE OF:	  

		BOARD DATE:	  14 June 2012

		DOCKET NUMBER:  AR20110024706 


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:

* upgrade of his under other than honorable conditions discharge to a general discharge or higher
* change of his reentry (RE) code "4" to "2" or above
* change of his separation code so he can enlist in the Army National Guard or U.S. Army Reserve (USAR)

2.  The applicant states he believes his discharge should be upgraded because of the following:

* the investigations were still ongoing
* he was presented a discharge and he took it without really understanding its impact
* his average conduct marks were pretty good
* he received awards, decorations, and letters of recommendation
* he served excellently in combat
* his record of promotions showed he was a good Soldier
* his personal problems to include financial, marital, and family left him in a position that affected his ability to serve
* all of his other discharges have been honorable

3.  The applicant provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army (RA) on 20 September 1995, in the rank/grade of private (PV2)/E-2, for a period of 4 years.  He completed training and he was awarded military occupational specialty 88M (Motor Transport Operator).

2.  He served in Germany from 25 May 1999 through 17 May 2002.  He also served in Iraq from 18 January 2005 through 18 January 2006

3.  On 12 February 2001, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for:

* dishonorably failing to maintain sufficient funds for payment of 15 checks in full upon their presentation for payment between 16 August and 9 September 2000
* dishonorably failing to maintain sufficient funds for payment of 8 checks in full upon their presentation for payment between 23 August and 22 September 2000
* dishonorably failing to maintain sufficient funds for payment of a check in full upon its presentation for payment on or about 23 August 2000
* dishonorably failing to maintain sufficient funds for payment of a check in full upon its presentation for payment on or about 5 October 2000

4.  He was promoted to the rank/grade of staff sergeant (SSG)/E-6 on 1 July 2006.  He was honorably discharged for the purpose of immediate reenlistment on 25 July 2008.  He reenlisted in the RA on 26 July 2008 for an indefinite period.

5.  On 10 July 2009, a DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)) was initiated against him for adverse action.

6.  On 30 July 2009, a commander's inquiry was completed concerning his actions on 6 and 8 July 2009 in which he was suspected of violating Articles 134 and 121 of the UCMJ for child neglect and wrongful appropriation of a government vehicle.  As a result of the investigation, the applicant's company commander recommended the applicant be so charged.

7.  A DD Form 458 (Charge Sheet), dated 28 August 2009, shows he was charged with one specification each of the following offenses:

* wrongfully appropriate a government vehicle on or about 6 July 2009
* 
unlawfully striking a child under 16 years of age on the head with an open hand on or about 30 March 2009
* unlawfully choking the same child on or about 30 March 2009
* leaving two children under his care and under 16 years of age unattended in his quarters for over 9 hours with no adult present in the home on or about 6 July 2009

8.  On 28 August 2009, court-martial charges were preferred against the applicant.

9.  On the same day, the applicant's intermediate and senior intermediate commanders recommended the charges be referred to a special court-martial empowered to adjudge a bad conduct discharge.

10.  On 8 October 2009, after consulting with counsel, he voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.  In doing so, he acknowledged he had not been coerced with respect to his request for discharge.  He also acknowledged he understood he could be issued an under other than honorable conditions discharge, the results of the issuance of such a discharge, and he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA).  He waived his rights and elected to submit a statement in his own behalf.

11.  In the applicant's statement, dated 8 October 2009, he requested to be discharged in lieu of trial by court-martial with a general discharge.  He apologized for his actions and the trouble he had caused his chain of command. He stated:

	a.  He understood the charges that he faced were serious and as a staff sergeant he should have had better judgment.  His Noncommissioned Officer Evaluation Reports (NCOERs) and Enlisted Record Brief (ERB) showed he was capable of making such judgment.  He let pride and not wanting his peers to know what he was doing get in the way.  He believed all of his accomplishments while in the service outweighed the charges at hand.

	b.  He felt he should receive a chapter 10 instead of a court-martial because he had served his country well for 14 years until the recent events happened.  He had a wife who was recently involved in an automobile accident that left her with her left arm being cut completely off.  He needs to still help her as much as he could with 

as many benefits he could receive once he was chaptered out of the Army.  He needed that support after he was out to help him start fresh in the civilian world.

12.  On 20 October 2009, the appropriate authority (a major general) approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10.  He directed the applicant's reduction to the lowest enlisted grade with an under other than honorable conditions discharge.

13.  On 28 October 2009, he was discharged accordingly with an under other than honorable conditions discharge in the rank/grade of private (PV1)/E-1.  He completed 14 years, 1 month, and 9 days of creditable active service with no time lost.  The DD Form 214 he was issued at the time shows he was assigned a separation code of KFS and an RE code of 3.

14.  On 7 January 2011, the Army Discharge Review (ADRB) denied his request for an upgrade of his character of service/and or reason for his discharge.  During the processing of their case, the ADRB noted that at the time of the applicant's discharge he should have been assigned the appropriate RE-4 code based on the authority and reason for his separation; however, the applicant's DD Form 214 erroneously shows an RE-3 code entry.  Therefore, the board unanimously voted to administratively change the applicant's RE-3 code to RE-4, as approved by the separation authority.

15.  On 11 January 2011, the applicant was notified that the ADRB determined he was properly and equitably discharged; therefore, his request was denied.  He was further notified that the RE code on his DD Form 214 was erroneous and required an administrative correction.  Therefore, he was issued a new DD Form 214 to reflect his correct RE-4 code.

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  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, 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.

	b.  Paragraph 3-7a states an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the member's 

service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization will be inappropriate.

	c.  Paragraph 3-7b states a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

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

18.  Army Regulation 635-200 further 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 RA and the USAR.  Table 3-1 included a list of the RA RE codes:

	a.  RE-1 applies to Soldiers completing their term 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 service at 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 their last period of service with a nonwaivable disqualification.  They are ineligible for enlistment.

19.  Prior to 28 February 1995, RE-2 applied to Soldiers who were separated for the convenience of the Government in accordance with Army Regulation
635-200, chapters 5 and reenlistment was not contemplated.  They were fully qualified for enlistment/reenlistment if all other criteria were met.  However, on
28 February 1995 Army Regulation 635-200 was revised, discontinuing the use of RE-2.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows the applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  He consulted with counsel and he voluntarily and in writing requested separation from the Army under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.  In doing so, he admitted guilt to the stipulated offenses.  On 28 October 2009, he was discharged accordingly with a under other than honorable conditions discharge.  He was assigned an SPD code of KFS and an administratively corrected RE code of "4."

2.  His contentions were carefully considered; however, he provides insufficient evidence or argument to show his discharge should be upgraded, or evidence sufficient to mitigate the character of his discharge.  The evidence shows he waived his opportunity to appear before a court-martial to prove his innocence if he felt he was being wrongfully charged.  In his request, he acknowledged he understood he could be furnished an under other than honorable conditions discharge and he could be ineligible for many or all VA benefits.

3.  His records contain no evidence that would justify an upgrade of his discharge.  His misconduct diminished the quality of his service below that meriting an honorable or a general discharge.  Although he had prior honorable discharges, he also had misconduct during those prior enlistment periods.

4.  As determined by the ADRB and in accordance with Army Regulation
601-210, his assigned RE code should have been RE-4 and is consistent with the SPD/RE code cross reference table for Soldiers discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  As such, the ADRB issued him a new DD Form 214 to reflect an RE code of "4."  The evidence also shows he was properly discharged in accordance with pertinent regulations, with due process.  

5.  There is no evidence in the available record and he had provided none to show his assigned SPD of "KFS" and RE code of "4" is in error or unjust.  Therefore, he has established no basis for changing his existing SPD and RE code.  

6.  It appears his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  Therefore, he was properly discharged in accordance with pertinent regulations with due process.

7.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or medical benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, the granting of veteran's benefits is not within the purview of the ABCMR.  Therefore, any questions regarding eligibility for health care and other benefits should be addressed to the VA.

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)                                         AR20110024706



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ABCMR Record of Proceedings (cont)                                         AR20110024706



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