IN THE CASE OF:	  

		BOARD DATE:  18 October 2012

		DOCKET NUMBER:  AR20120007678 


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 that his general discharge be upgraded to an honorable discharge and that his reentry (RE) code be changed to "1."

2.  The applicant states:

	a.  the presumption of regularity that the Army acted correctly in characterizing his service as less than honorable does not apply in his case because his ability to serve was impaired by his youth, immaturity, and experience in combat;

   b.  he experienced numerous family problems and he started using drugs as a measure of escape;
   
   c.  even though he was having problems he still managed to handle any task given to him and he attended anger management;
   
   d.  he completed his work effectively and promptly and believes he was a good Soldier;
   
   e.  he passed the Army Physical Fitness Test, earned multiple awards to include the Purple Heart, served in Iraq, was promoted to specialist (SPC)/E-4, and he was within 6 months of leaving the Army before the “stop loss” policy came in effect; and
   f.  while he accepts responsibility for his inappropriate actions, he believes it is an injustice for him to continue to suffer the adverse consequences of less than fully honorable discharge.

3.  The applicant provides a self-authored statement.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army (RA) on 6 August 2002 and he was trained in, awarded, and served in military occupational specialty (MOS) 92Y (Unit Supply Specialist).

2.  The applicant's Enlisted Record Brief shows in Section III (Service Data) that he was promoted to the rank/grade of SPC on 1 August 2004 and this was the highest rank he held while serving on active duty.  His record also shows he earned several personal and service awards throughout his service.

3.  On 3 March 2005, a DD Form 458 (Charge Sheet) was prepared preferring court-martial charges against the applicant for violating the following Articles of the Uniform Code of Military Justice (UCMJ) as indicated:

   a.  Article 86 (2 specifications) – for failing to go at the time prescribed to his appointed place of duty on 29 October 2004 and on diverse occasions between 13 and 28 December 2004 fail to go to his appointed place of duty at the time prescribed;
   
   b.  Article 91 (2 specifications) - for willfully disobeying a lawful order given to him by a noncommissioned officer on two separate occasions on 28 October 2004; and
   
   c.  Article 112a – for wrongfully using marijuana.

4.  On an unknown date, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions (UOTHC) discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel he voluntarily requested discharge in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).

5.  In his request for discharge the applicant acknowledged he understood 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 (VA), and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also indicated he understood he could face substantial prejudice in civilian life if he were issued a UOTHC discharge.

6.  On 17 May 2005, the separation authority approved the applicant's request for discharge and directed that he be discharged under the provisions of Army Regulation 635-200, chapter 10, with a UOTHC discharge.  On 25 May 2005, the applicant was discharged accordingly. 

7.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time shows he was discharged under the provisions of Army Regulation 635-200, paragraph Chapter 10, “In lieu of Trial by Court-Martial,” with a UOTHC discharge.  He completed 2 years, 9 months, 20 days of creditable active service.

8.  Item 26 (Separation Code) of his DD Form 214 contains the entry "KFS."  Item 27 (RE Code) contains the entry "4."

9.  On 24 February 2010, the Army Discharge Review Board (ADRB), after carefully examining the applicant's record of service, determined the characterization of the applicant's discharge was too harsh based on his length and quality of service, earned awards which included the Purple Heart, Army Commendation Medal and Army Achievement Medal, and combat service and as a result his discharge was inequitable.  Accordingly the ADRB voted to grant relief by upgrading his UOTHC discharge to a general discharge, with restoration of his rank/grade to SPC/E-4.  However, the ADRB determined the reason and authority for his discharge was both proper and equitable and voted not to change it.

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

	a.  Chapter 10 states 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 UOTHC discharge is normally considered appropriate.

	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.

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. It states, in pertinent part, 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.

12.  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 (Active and Reserve Components Enlistment Program), covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (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.

	b.  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 contends his characterization of service should be upgraded to honorable.

2.  The evidence of record confirms the ADRB determined the applicant's UOTHC discharge was too harsh and voted to upgrade it to a general discharge. However, the ADRB determined the applicant's narrative reason for separation and the separation authority were both proper and equitable and voted not to change them.

3.  The evidence of record confirms the applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge for two specifications of failing to go to his appointed place of duty at the prescribed time, disobeying a lawful order (twice), and the use of marijuana.  Subsequent to these charges, he consulted with legal counsel, and voluntarily requested discharge in lieu of trial by court-martial.

4.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.  His service clearly did not support an HD at the time of his discharge and it does not support an upgrade now.

5.  Under the governing regulation, the SPD code of "KFS" and an RE code of "4" are the proper codes to assign members separating under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial.  The codes were appropriately assigned to the applicant at the time of his discharge and they are still appropriate.  Absent any evidence of an error or injustice related to the assigned RE code, there is an insufficient evidentiary basis to support granting 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 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)                                         AR20120007678



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ABCMR Record of Proceedings (cont)                                         AR20120007678



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