BOARD DATE:	  8 July 2014

		DOCKET NUMBER:  AR20130019384


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 entry-level or uncharacterized discharge.  He further requests amendment of his reentry eligibility (RE) code from 4 to a code that will allow him to reenter military service.

2.  The applicant states:

* he has paperwork stating Soldiers who were discharged under other than honorable conditions on or after 1 October 1982 while in an entry-level status with less than 180 days of active service can request to have their discharges upgraded to an entry-level or uncharacterized discharge
* he falls under this stated criteria so he is trying to have his discharge upgraded to at least uncharacterized
* his request for an upgrade to an honorable discharge was denied even though Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) states an honorable or general discharge is authorized
* he is trying to have his discharge upgraded so he can rejoin the military and become a military police Soldier
* he figures the higher his discharge rating, the easier it will be to rejoin the military if allowed

3.  The applicant provides no additional evidence.


CONSIDERATION OF EVIDENCE:

1.  On 19 October 2006, the applicant enlisted in the Regular Army.  He entered active duty at Fort Benning, GA for one-station unit training.

2.  On 5 January 2007, he was reported as absent without leave (AWOL) by his unit.

3.  On 4 February 2007, he was dropped from the rolls of the Army.  On this same date, court-martial charges were preferred against him for being AWOL since on or about 5 January 2007.

4.  On or about 5 April 2007, he was apprehended by civilian authorities and returned to military control.

5.  On 19 April 2007, court-martial charges were again preferred against him for being AWOL from on or about 5 January 2007 through on or about 5 April 2007.

6.  On 19 April 2007, 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 discharge under other than honorable conditions, the maximum permissible punishment authorized under the Uniform Code of Military Justice (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, chapter 10.

7.  In his request for discharge, he indicated he was making this request of his own free will and he had not been subjected to any coercion whatsoever by any person.  He also indicated he understood that by requesting discharge, he was admitting guilt to the charges against him or of lesser-included offenses that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions.  He further acknowledged he understood if the 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, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He elected not to submit statements in his own behalf.

8.  On 18 May 2007, the separation authority approved his voluntary request for discharge in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, and directed the issuance of a discharge under other than honorable conditions.

9.  On 6 June 2007, he was discharged accordingly.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows:

* item 12c (Net Active Service This Period) – 4 months and 18 days of net active service during this period
* item 18 (Remarks) – "MEMBER HAS NOT COMPLETED FIRST FULL TERM OF SERVICE"
* item 24 (Character of Service) – under other than honorable conditions
* item 25 (Separation Authority) – Army Regulation 635-200, 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
* item 29 (Dates of Time Lost During This Period) – "UNDER 10 USC 972 [Title 10, U.S. Code, section 972]:  20070105-20070404 [5 January 2007-4 April 2007]" (indicating he had 90 days of lost time due to AWOL)

10.  On 25 April 2012, the Army Discharge Review Board (ADRB) reviewed his request for an upgrade of his discharge under other than honorable conditions.  After careful consideration, the ADRB determined the reason for his discharge and the character of his service were both proper and equitable and voted to deny relief.

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

	a.  Paragraph 3-5 provides that a Soldier's characterization at separation will be based upon the quality of his/her service, including the reason for separation and regulatory guidance contained in Army Regulation 635-200, chapter 3, subject to the limitations under the various reasons for separation.

* the quality of service will be determined according to standards of acceptable personal conduct and performance of duty for military personnel
* these standards are found in the UCMJ, directives and regulations issued by the Army, and the time-honored customs and traditions of military service
* the quality of service of a Soldier on active duty is affected adversely by conduct that is of a nature as to bring discredit on the Army or is prejudicial to good order and discipline
* the reasons for separation, including the specific circumstances that form the basis for the separation, will be considered on the issue of characterization

	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.

	d.  Paragraph 3-9a provides that a separation will be described as entry-level, with service uncharacterized, if processing is initiated while a Soldier is in an entry-level status, except when an under other than honorable conditions characterization is authorized under the reason for separation and is warranted by the circumstances of the case.

	e.  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.

	f.  For Regular Army Soldiers, entry-level status is the first 180 days of continuous active duty or the first 180 days of continuous active duty following a break of more than 92 days of active military service.  Service that is not creditable per Department of Defense Financial Management Regulation 7000.14-R, volume 7A (Military Pay Policy – Active Duty and Reserve Pay), including lost time, is excluded from the period of entry-level status.

12.  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 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 the time of separation, but disqualification is waivable.  They are ineligible for enlistment unless a waiver is granted.

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

13.  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 provides that SPD code 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 RE code 4 will be assigned to members separated under these provisions with an SPD code of KFS.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his discharge under other than honorable conditions and amendment of his RE code was carefully considered.

2.  The applicant contends he was eligible for an honorable discharge or a general discharge under honorable conditions at the time of his separation.

3.  The evidence of record shows he was AWOL from on or about 5 January 2007 through on or about 5 April 2007, a period of 90 days.  His AWOL service is considered lost time and is not counted toward the fulfillment of the first 180 days that constitute entry-level status.  Although the total period of time from enlistment to discharge was over 180 days, he was credited with only 138 days of creditable service.  He was, therefore, still in an entry-level status.

4.  Shortly after he was returned to military control, he voluntarily, willingly, and in writing requested discharge in lieu of trial by court-martial.  He was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no indication of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

5.  Army Regulation 635-200, paragraph 3-9a, provides that a separation will be described as entry level, with service uncharacterized, if processing is initiated while a Soldier is in an entry-level status, except when an under other than honorable conditions characterization is authorized under the reason for separation and is warranted by the circumstances of the case

6.  His RE code was assigned based on his voluntary discharge under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  Absent the court-martial charges, there was no fundamental reason for him to request a discharge from the Army.  The underlying reason for his discharge was his voluntary request for discharge in lieu of trial by court-martial.  The only valid narrative reason for separation permitted under this paragraph is "in lieu of court-martial."

7.  The appropriate SPD code is KFS and the corresponding RE code is 4.  Therefore, he received the appropriate RE code associated with the authority and narrative reason for his separation.

8.  Based on his extended period of AWOL, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct rendered his service unsatisfactory; therefore, 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)                                         AR20100011935



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130019384



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1