IN THE CASE OF:	  

		BOARD DATE:	  19 June 2012

		DOCKET NUMBER:  AR20120001279 


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 correction of his records as follows: 

* Upgrade his character of service from under other than honorable conditions to an entry level separation, honorable, or general character of service
* Change the separation code from "KFS" to "ELPAC"
* Change his Reentry (RE) Code from "RE-4" to a more favorable code

2.  The applicant states he feels the Army is in error and that both Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) and Army Regulation 135-178 (Army National Guard and Army Reserve - Enlisted Administrative Separation) support his contention.  His discharge and corresponding separation and RE codes are based on one isolated incident and do not reflect his conduct or overall performance. 

3.  The applicant did not provide any evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 15 July 2004 and he was subsequently assigned to Fort Benning, GA, for completion of training.

2.  On 5 August 2004, he departed his training unit in an absent without leave (AWOL) status and on 5 September 2004, he was dropped from the Army rolls as a deserter.  He was apprehended by civil authorities at Murfreesboro, TN, and returned to military control at Fort Benning, GA, on 13 October 2004. 

3.  On 21 October 2004, court-martial charges were preferred against the applicant for one specification of being AWOL from 5 August to 13 October 2004.

4.  Also on 21 October 2004, he consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.

5.  In his request for discharge, he indicated that:

* he was making this request of his own free will and he had not been subjected to any coercion whatsoever by any person
* he understood by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offense, that also authorized the imposition of a bad conduct discharge or a dishonorable discharge
* he further acknowledged he understood that if the discharge request was approved, he could 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
* he also acknowledged he could be deprived of his rights and benefits as a veteran under both Federal and State laws

6.  He submitted a statement in connection with his request wherein he requested an uncharacterized discharge from the Army.  He acknowledged that he made a mistake but appealed to his chain of command not to make this mistake ruin his life. 

7.  His chain of command recommended approval with the issuance of an under other than honorable conditions discharge.

8.  On 1 November 2004, the separation authority approved the applicant's request for discharge in accordance with Army Regulation 635-200, chapter 10 and directed the issuance of an under other than honorable conditions discharge. On 10 November 2004, he was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he completed 1 month and 17 days of creditable active service and he had 67 days of lost time.  Additionally, this form shows in:

* Item 26 (Separation Code) - "KFS"
* Item 27 (RE Code) - "4"

9.  On 26 August 2011, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

10.  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.

	a.  An uncharacterized separation is an entry-level separation.  A separation will be described as an entry-level separation if processing is initiated while a member is in an entry-level status, except when characterization under other than honorable conditions is authorized under the reason for separation and is warranted by the circumstances of the case or when the Secretary of the Army, on a case-by-case basis, determines that characterization of service as honorable is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty.  Entry-level status is the first 180 days of continuous active duty or the first 180 days of continuous active duty following a break in service of more than 92 days of active military service.

	b.  Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  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 would be clearly inappropriate.

	c.  Paragraph 3-7b provides that 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.

11.  Army Regulation 135-178 applies to member of the Army National Guard and U.S. Army Reserve.
12.  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.

13.  Army Regulation 635-5-1 does not list an SPD code of “ELPAC.”  

14.  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 U.S. Army Reserve (USAR).  Table 3-1 included a list of the RA RE codes:

* An 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
* An 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
* An RE-4 applies to Soldiers who are separated from their last period of service with a nonwaivable disqualification; they are ineligible for enlistment

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s records show he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharge actions processed under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

2.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either a general or an honorable discharge.

3.  During the first 180 days of continuous active military service, a member's service is under review.  When separated within the first 180 days, service is usually not characterized unless the circumstances of the separation warrant an under other than honorable conditions discharge.  An honorable characterization may be given only if the service clearly warrants that characterization by unusual circumstances of personal conduct and performance of military duty and the characterization must be approved by The Secretary of the Army.  Since the circumstances that led to his discharge warranted an under other than honorable conditions discharge, he is not entitled to an uncharacterized discharge. 

4.  The evidence of record further confirms that his separation and RE codes were assigned based on the fact that he was discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  The appropriate separation code and corresponding RE code associated with this type of discharge is "KFS" and "RE-4."  Therefore, he received the appropriate separation and RE codes associated with his discharge and he is not entitled to the requested relief.

5.  Army Regulation 135-178 applies to member of the Army National Guard and U.S. Army Reserve.  He enlisted in the Regular Army.  Therefore, Army Regulation 635-200 applies in his case. 

6.  There is no separation code of "ELPAC."  Separation codes are three digit codes.  The appropriate separation code associated with a chapter 10 discharge is "KFS." 

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)                                         AR20120001279



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ABCMR Record of Proceedings (cont)                                         AR20120001279



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