IN THE CASE OF:	  

		BOARD DATE:  3 September 2013

		DOCKET NUMBER:  AR20130001880 


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:

	a.  An upgrade of his under other than honorable conditions discharge to a general discharge.

	b.  His reentry (RE) code be changed.

2.  The applicant states:

	a.  He believes "the charge was unjust and in error."  He is confident his evidence and maturity will prove he is ready to go back into the military.  His skills, knowledge and background make him a useful addition to the Army.

	b.  On 29 October 2009, he was instructed to sign a negative counseling statement, but he wanted to speak with his team staff sergeant first.  His request was denied and a sergeant yelled at him and assaulted him.  He pushed the sergeant and the sergeant told him to go home.  He missed movement on 
30 October because he was still upset about the incident the day before.

	c.  The incidents that led to his discharge occurred in December 2009.  He was denied leave for having a pending Article 15 for failure to report for duty.  He did not report for duty because he had a doctor's appointment.  He missed work on 25 October 2009 because he went to pick up a stranded fellow Soldier in Denver due to a snow storm and he crashed his vehicle.  

	d.  He must take responsibility for what occurred on 17 December 2009.  He deserted the Army for nearly a month and was apprehended on 3 February 2010.  He needed to take leave to see his mother on his birthday and to take care of her during the holiday.

	e.  He was planning to make the military a career.  He understands that some of his actions were wrong.  He should not have lost his temper. 

3.  The applicant provides a character reference letter.

CONSIDERATION OF EVIDENCE:

1.  Having prior service in the Regular Army (RA), the applicant again enlisted in the RA on 24 January 2008.  He served as an infantryman in Iraq from 1 July 2008 to 28 February 2009.  He was honorably discharged for immediate reenlistment on 30 September 2009.  He reenlisted on 1 October 2009 for a period of 6 years. 

2.  On 4 February 2010, charges were preferred against him for:

* desertion from 17 December 2009 to 3 February 2010
* failing to report to his designated place of duty
* missing movement
* being disrespectful in language toward a noncommissioned officer
* fleeing apprehension

3.  On 10 February 2010, he consulted with counsel and requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  He acknowledged that by submitting his request for discharge he was guilty of a charge against him that authorized the imposition of a bad conduct or dishonorable discharge.  He indicated in his request he understood he might be discharged under conditions other than honorable and given an under other than honorable discharge, he might be ineligible for many or all benefits administered by the Department of Veterans Affairs, he might be deprived of many or all Army benefits, and he might be ineligible for many or all benefits as a veteran under both Federal and State laws.  He acknowledged he might expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.  He elected not to make a statement in his own behalf. 

4.  On 19 February 2010, the separation authority approved the applicant's voluntary request for discharge and directed the issuance of an under other than honorable conditions discharge.
5.  On 5 March 2010, he 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 with an under other than honorable conditions discharge.  He completed 1 year, 11 months, and 9 days of creditable active service during the period under review with 64 days of lost time.  

6.  His DD Form 214 shows the following:

* item 25 (Separation Authority) – "AR [Army Regulation] 635-200, CHAP [Chapter] 10"
* item 26 (Separation Code) – "KFS"
* item 27 (Reentry Code) – "4"
* item 28 (Narrative Reason for Separation) – "IN LIEU OF TRIAL BY COURT-MARTIAL"

7.  On 6 June 2011, the Army Discharge Review Board denied his request for a discharge upgrade.

8.  He provides a character reference letter from a co-worker who attests:

* the applicant possesses many honorable skills that would benefit his brothers in arms
* he has amazing potential and would be a great vessel to develop as a Soldier and leader in the Armed Forces
* she was amazed by his guidance and leadership
* he is loyal, dependable, honest and respectful
* his leadership skills, physical strength, supportive actions, and positive attitude would greatly benefit the Army 

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

	a.  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.

	b.  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 635-5-1 (Separation Program Designator (SPD) Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPD codes to be used for these stated reasons.  The regulation states the reason for discharge based on a separation code of KFS is "in lieu of trial by court-martial" and the regulatory authority is Army Regulation 635-200, chapter 10.

11.  Army Regulation 635-200 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 Regular Army, U.S. Army Reserve, and Army National Guard.  Table 3-1 includes a list of RE codes.

	a.  RE-1 applies to persons completing an initial term of active service who were fully qualified when last separated.

	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.

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

12.  The SPD/RE Code Cross Reference Table, dated 15 June 2006, shows that Soldiers given an SPD code of "KFS" will be given an RE code of 4.

DISCUSSION AND CONCLUSIONS:

1.  The character reference letter submitted on behalf of the applicant failed to show his discharge was unjust and should be upgraded.

2.  His record of service during his last enlistment included serious offenses for which trial by court-martial was recommended.  As a result, his record of service was not satisfactory.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge.

3.  His voluntary request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and in conformance with applicable regulations.  He had an opportunity to submit a statement in which he could have voiced his concerns and he elected not to do so.

4.  The type of discharge directed and the reasons for discharge were appropriate considering all the facts of the case.

5.  The evidence of record confirms his RE code was assigned based on his discharge under the provisions of Army Regulation 635-200, chapter 10.  The 
RE code associated with this type of discharge is an RE code of 4.  Therefore, the applicant received the appropriate RE code associated with his discharge.

6.  In view of the foregoing, there is no basis for granting the applicant's requests.

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)                                         AR20130001880



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ABCMR Record of Proceedings (cont)                                         AR20130001880



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