IN THE CASE OF:	

		BOARD DATE:	  24 July 2012

		DOCKET NUMBER:  AR20120001409 


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 his under other than honorable conditions discharge be upgraded to a general under honorable conditions discharge.  In addition, he requests his reentry (RE) code of 4 be upgraded to the RE code of 2.

2.  The applicant states:

* he had to choose between the Army or his wife which resulted in him receiving an under other than honorable conditions discharge
* he was not able to consult with counsel about his RE code and the effect it would have on his reenlistment in the Army
* his request for discharge in lieu trial by court-martial should not preclude him from reentering in the Army

3.  The applicant provides:

* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* his wife's DD Form 214
* a State of Arizona – County of Cochise Marriage License, dated 14 March 2006
* Orders 193-0101, issued by U.S. Army Intelligence Center and Fort Huachuca, dated 12 July 2006
* a DD Form 2648 (Preseparation Counseling Checklist for Active Duty Component Members), 6 July 2007

* Army Discharge Review Board (ADRB) Case Number AR20080014711, dated 8 July 2009
* a memorandum from the ADRB, dated 14 July 2009
* a letter of support from a Chief Master Sergeant, U.S. Air Force, Retired
* an undated letter of support from a Goodyear Store Manager

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army (RA) on 22 September 2005.  He successfully completed training and was awarded military occupational specialty 97E (Human Intelligence Collector).

2.  On 10 August 2006, charges were preferred against the applicant for being absent without leave (AWOL) from 15 June 2006 through 6 August 2006.

3.  On 10 August 2006, after consulting with counsel, the applicant voluntarily submitted a request for discharge under the provisions of Army Regulation
635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), chapter 10, for the good of the service in lieu of trial by court-martial.  The applicant indicated in his request that he understood he could be discharged under other than honorable conditions, that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Department of Veterans Affairs, and that he may be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he may expect to encounter substantial prejudice in civilian life.  He elected not to provide statements in his own behalf.

4.  On 24 May 2007, the appropriate authority approved the applicant's request for discharge for the good of the service.  He directed that the applicant be issued an under other than honorable conditions discharge and that he be reduced to private (PVT)/E-1.

5.  On 6 June 2007, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, with service characterized as under other than honorable conditions.  He completed 1 year, 6 months, and 24 days of creditable active service with 52 days of lost time due to AWOL.  The applicant's DD Form 214 shows in item 24 (Character of Service) "UNDER OTHER THAN HONORABLE CONDITIONS," in item 26 (Separation Code) the entry "KFS," in item 27 (Reentry Code) the entry "4," and in item 28 (Narrative Reason for Discharge) the entry "IN LIEU OF TRIAL BY COURT-MARTIAL."

6.  The applicant applied to the ADRB to upgrade his discharge and change his RE code.  On 8 July 2009, the ADRB reviewed and denied the applicant's request for upgrade.  The ADRB determined that the applicant's discharge was proper and equitable and that the reason and characterization of his discharge, to include his RE code, was both proper and equitable.

7.  The applicant provided two letters of support.  Both authors stated he was a hard worker.  The applicant took initiative and showed leadership skills and helped subordinates better themselves.  The applicant was always on time and customers always received quality service.  Both authors indicated the applicant was the kind of leader that is needed in the military.

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

9.  Army Regulation 635-200, 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.  

10.  Army Regulation 635-200 further states, in pertinent part, 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 (Regular Army and Army Reserve 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:

	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.

	c.  RE-2 code is no longer used.

	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 unless a waiver is granted. 

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

11.  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. The SPD code of KFS was the appropriate code for the applicant based on the guidance provided in this regulation for Soldiers separating under the provisions of Army Regulation 635-200, chapter 10, by reason of in lieu of trial by court-martial.  Additionally, the SPD/RE Code Cross Reference Table establishes 
RE-4 as the proper reentry code to assign to Soldiers with an SPD of KFS.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request for upgrade of his discharge was carefully considered and it was determined there is insufficient evidence to support his request.

2.  The applicant contends he had to make choice between the Army or his wife caused him to go AWOL.  After reviewing the applicant's request for discharge and the charges preferred against him, the separation authority approved his voluntary request for discharge in lieu of court-martial and directed that he be issued a under other than honorable conditions discharge.  Accordingly, the applicant was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service in lieu of trial by court-martial.  

3.  Records clearly show the applicant voluntarily 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.

4.  Evidence of record shows the applicant consulted with counsel on 10 August 2006, prior to requesting chapter 10, for the good of the service in lieu of trial by court-martial.  He indicated in his request that he understood he could be discharged under other than honorable conditions, that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Department of Veterans Affairs, and that he may be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he may expect to encounter substantial prejudice in civilian life.  If he did not understand the type of RE code he would receive with his discharge he had the opportunity to ask then or prior to his discharge.  In addition, he elected not to provide statements in his own behalf.

5.  The evidence of record shows the applicant’s RE code was assigned based on the fact that he was separated under the provisions of Army Regulation
635-200, chapter 10, in lieu of trial by court-martial.  The RE code associated with this type of discharge is an RE code "4."  Therefore, the applicant was assigned the appropriate RE code.

6.  The applicant's military service record shows he completed 1 year, 6 months, and 24 days of creditable active service with a total of 52 days of time lost due to AWOL.  Based on these facts the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for the issuance of a general discharge.

7.  In view of the foregoing, there is no basis for granting the applicant's 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 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)                                         AR20120001409



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ABCMR Record of Proceedings (cont)                                         AR20120001409



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