IN THE CASE OF:	  

		BOARD DATE:  25 February 2014

		DOCKET NUMBER:  AR20130011364 


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:

* an upgrade of his discharge under other than honorable conditions to an honorable discharge
* correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his character of service as honorable and his reentry eligibility (RE) code as 1

2.  The applicant states the characterization of his service and RE code shown on his DD Form 214 are unjust.

3.  The applicant provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant was serving in the Army National Guard (ARNG) and he entered active duty in support of Operation Iraqi Freedom on 1 May 2009 as a member of his ARNG unit.

2.  He served in Iraq while assigned to the 1st Battalion, 155th Infantry Regiment.  The specific dates of his service in Iraq are not known.

3.  While serving in Iraq, a DA Form 4126 (Bar to Reenlistment Certificate) was imposed against him.  The DA Form 4126, dated 19 October 2009, stated he was punished on 4 June 2009 for violating Article 92 of the Uniform Code of Military Justice (UCMJ) for possessing alcohol in the theater of operations.  On 8 June 2009, a suspended punishment was vacated because he violated Article 86 of the UCMJ by being absent from his place of duty.  Other factual and relevant indicators of his untrainability or unsuitability included being caught smoking marijuana in the theater of operations, being absent without leave (AWOL) at the mobilization station (Camp Shelby, MS), and being insubordinate to a senior noncommissioned officer.  The bar to reenlistment was approved on 30 October 2009.

4.  The applicant and his unit subsequently redeployed to Camp Shelby, MS.  On 10 March 2010, he was reported as AWOL from his assigned unit.  On 10 April 2010, he was dropped from the rolls as a deserter.

5.  On 13 August 2010, he was returned to military control by civilian authorities from the Forrest County Jail, Hattiesburg, MS.  He was then assigned to the U.S. Army Personnel Control Facility, Fort Knox, KY.

6.  On 30 August 2010, court-martial charges were preferred against him for one specification of being AWOL from 10 March to 13 August 2010.

7.  On 30 August 2010, 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 UCMJ, the possible effects of a request for discharge, and the procedures and rights available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 10.

8.  In his request for discharge, he indicated he understood that by requesting discharge he was admitting guilt to the charge against him or of a lesser-included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request were approved, 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.

9.  In his accompanying statement in his own behalf, dated 30 August 2010, he stated he was requesting an honorable or a general discharge.  At the time he was AWOL he had just returned from a deployment and had a lot of family issues.  He realized he made the wrong decision, but someone broke into his family's home and everything he owned was stolen.  He was asking for a second chance because he was able to help his family when he was serving and he would like to serve again.

10.  His chain of command subsequently recommended approval of his request for discharge with an under other than honorable conditions characterization of service.

11.  On 28 September 2010, the separation authority approved the applicant's request and directed his discharge under other than honorable conditions.  On 22 October 2010, he was discharged accordingly.

12.  His DD Form 214 confirms he was discharged in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, with his service characterized as under other than honorable conditions.  He completed 1 year and 18 days of net active service during this period and he accrued 153 days of lost time due to being AWOL.  Item 26 (Separation Code) of this form contains the entry KFS and item 27 (Reentry Code) contains the entry 4.

13.  On 7 May 2012, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge and change in his RE code and found his discharge was both proper and equitable.

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

	a.  Chapter 10 provides that a member who commits 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 at any time after court-martial charges are preferred.  Consulting counsel will advise the member concerning the elements of the offense(s) charged, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  A discharge under other than honorable conditions 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.

	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.

15.  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 the SPD code of KFS is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  The SPD/RE Code Cross Reference Table stipulates that an RE code of 4 will be assigned to members separated under these provisions with an SPD code of KFS.

16.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing in the Regular Army, U.S. Army Reserve, and Army National Guard.  Table 3-1 shows the RE codes and states:

	a.  RE-1 applies to Soldiers completing their terms 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-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 or reenlistment unless a waiver is granted.

	c.  RE-4 applies to Soldiers who are not considered fully qualified for reentry or continuous services at time of separation and the disqualification is not waivable.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant was charged with the commission of a serious offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  As such, he voluntarily requested a discharge to avoid a trial by court-martial.

2.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

3.  He was separated under the provisions of Army Regulation 635-200, chapter 10, with an SPD code of KFS.  Based on his separation action under this provision, he was appropriately assigned an RE code of 4 at the time of his discharge.  An RE code of 4 is the correct code for Soldiers separated in lieu of trial by court-martial; no other RE code is authorized.

4.  His records show he was AWOL for 154 days at the time he was returned to military control.  Based on this record of misconduct alone, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to an honorable or a general discharge.

5.  In view of the foregoing, he is not entitled to 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 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)                                         AR20130011364



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ABCMR Record of Proceedings (cont)                                         AR20130011364



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