IN THE CASE OF: 

		BOARD DATE:	    11 December 2012

		DOCKET NUMBER:  AR20120011252 


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, through a Member of Congress, reconsideration of his earlier petition to the Board for an upgrade of his reentry (RE) code.  

2.  The applicant states the information he is now providing will show he should have been considered for reenlistment eligibility.  He claims he did not deny his duty because he never started basic training and as a result should not be held accountable as a Soldier if he knew nothing of his duties.  He further states he was continuously denied the opportunity to present his situation to his commander by a noncommissioned officer (NCO).  The applicant also indicates in his application that he can present evidence at a hearing that would support his assertions.  

3.  The applicant provides a Congressional Inquiry packet which includes a self-authored statement and lawyer's letter as new evidence in support of his request. 

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 AR20110020554, on 12 April 2012.  
	


2.  During the original review of the case, the Board found the applicant’s 
1 month and 13 days of creditable service was far outweighed by his combined period of 6 months and 27 days of being absent without leave (AWOL).  It further found no evidence indicating the applicant ever tried to pursue legitimate avenues to obtain assistance or relief without committing the misconduct which led to his voluntary discharge.  

3.  The applicant now provides a self-authored letter in which he presents his argument, a criminal records check, his father’s death certificate, a lawyer’s letter, and accomplishments since his discharge as new evidence.  

4.  The applicant’s record shows he enlisted in the Regular Army (RA) on          23 June 2005.  

5.  On 27 June 2005, while the applicant was at the reception station at Fort Benning, Georgia processing for entry into basic training, his father died.  

6.  On 27 June 2005, the applicant departed AWOL from the reception station.  He remained away for 20 days until returning to military control on 16 July 2005.  

7.  On 20 July 2005, the applicant was again reported AWOL.  He remained away until being apprehended and returned to military control on 10 January 2006.  

8.  On 19 January 2006, a DD Form 458 (Charge Sheet) was prepared against the applicant preferring a court-martial charge against him for violating Article 86 of the Uniform Code of Military Justice (UCMJ) by being AWOL from on or about 20 July 2005 to on or about 10 January 2006.  

9.  On 19 January 2006, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-marital and of the effects of an under other than honorable conditions (UOTHC) discharge.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge in lieu of trial by court-martial.  In his request for discharge the applicant acknowledged he was guilty of the offense with which he was charged, or of a lesser included offense that also authorized the imposition of a punitive discharge.  

10.  On 30 January 2006, the separation authority approved the applicant’s discharge request and directed he be discharged with a UOTHC discharge.  On 15 February 2006, the applicant was discharged accordingly.  



11.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time of his discharge shows he was separated under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations), in lieu of trial by court-martial.  It also shows that based on the authority and reason for his separation, he was assigned a Separation Program Designator (SPD) code of KFS and an RE code of 4.  It also shows he completed a total of 1 month and 13 days of creditable active military service and accrued 6 months and 
27 days of time lost due to AWOL.  

12.  On 21 June 2011, the Army Discharge Review Board (ADRB) considered the applicant’s case at a personal appearance hearing in Chicago, Illinois.  After considering the applicant entire military record, all facts presented at the hearing, and testimony from the applicant and his counsel, the ADRB voted unanimously to deny the applicant’s request for an upgrade of his discharge and to not change the authority and reason for separation.  

13.  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).  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of Armed Forces RE codes, including RA RE codes.  An RE code of "4" applies to persons who have a nonwaivable disqualification.  Chapter 4 states recruiting personnel have the responsibility for initially determining whether an individual meets current enlistment criteria and are responsible for processing waivers.  

14.  Army Regulation 635-5-1 (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 provides for assigning the SPD code KFS to Soldiers separated under the provisions of chapter 10, Army Regulation 635-200 in lieu of trial by court-martial.  The Department of the Army SPD/RE Code Cross Reference Table stipulates that an RE code of "4" is the proper code to assign members who are separated in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200 and who are assigned an SPD code of "KFS."  

15.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army.  Chapter 2, Section IV contains guidance on hearings and disposition of applications.  It states applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request for reconsideration of his earlier petition to the Board to upgrade his RE code has been carefully considered.  However, there remains insufficient evidence to support this claim.  

2.  The new evidence and argument provided by the applicant was considered in some form during the original review of the case.  The fact his father died shortly after he reported to the reception station is sad but is not an excuse for the applicant not pursuing help for this situation through normal channels.  Members who have seriously ill family members or who have lost an immediate family member are routinely granted emergency leave to deal with the situations.  While his situation was very unfortunate, there is no evidence the applicant ever attempted to seek emergency leave or any other type of assistance based on the illness and death of his father.  As a result, this personal tragedy does not mitigate the fact he was AWOL.  Further, he compounded his misconduct by going AWOL a second time.  

3.  The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  It also shows that after consulting with defense counsel, the applicant 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 the rights of the applicant were fully protected throughout the separation process.  

4.  By regulation, the RE code assigned is based on the SPD code assigned as a result of the authority and reason for separation and RE code of "4" was the proper code to assign the applicant based on the authority and reason for separation.  The RE code of "4" was and remains valid.   As a result, there is an insufficient evidentiary basis to support amendment of the original decision or granting the requested relief.  

5.  In addition, as a matter of information, formal hearings and personal appearance before the ABCMR is not a right and is only necessary when it is determined by the Director of ABCMR to be necessary in the interest of justice.  In this case, the evidence of record and independent evidence was sufficient for the ABCMR to arrive at a fair and impartial decision.  



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 AR20110020554, dated 12 April 2012.  




      _______ _  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)                                         AR20120011252



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ABCMR Record of Proceedings (cont)                                         AR20120011252



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