RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         28 February 2006
      DOCKET NUMBER:  AR20050010952


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Hubert O. Fry                 |     |Chairperson          |
|     |Ms. Carol A. Kornhoff             |     |Member               |
|     |Mr. John M. Moeller               |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, an upgrade of his reentry (RE) code.


2.  The applicant states, in effect, he needs help in order to return to
the Army.  He states that he went in front of a board and received a
general, under honorable conditions discharge (GD), but was unable to
change his RE-4 code.  He indicates that he has spoke to many recruiters,
who have all informed him that the only way for him to reenlist in the Army
is to get his RE-4 code changed to an RE-3 code.  He states that at the
present time, he is a New York City (NYC) police officer, and prior to
that, he was a corrections officer.  He states that the one thing he
regrets is his failure to complete his military obligation.  He claims that
he would now like to join the Army and enter the Military Police Corps and
have a career in law enforcement.

3.  The applicant provides the following documents in support of his
application:  Self-Authored Statement; NYC Correction Academy Training
Certificate; NYC Police Department Training Certificate; Homeland Security
Training Certificate; Warlords Certificate; and Essey for the Army
Discharge Review Board (ADRB).

CONSIDERATION OF EVIDENCE:

1.  The applicant’s record shows he enlisted in the Regular Army and
entered active duty on 21 May 1999.  He was trained in, awarded and served
in military occupational specialty (MOS) 19K (Armor Crewman). And the
highest rank he attained while serving on active duty was private/E-2.

2.  On 18 April 2000, the applicant departed absent without leave (AWOL)
from his unit at Fort Hood, Texas.  He remained away for 34 days until
returning to military control on 21 May 2000, at Fort Knox, Kentucky.

3.  On 30 May 2000, a Charge Sheet (DD Form 458) was prepared preferring a
court-martial charge against the applicant for violating Article 86 of the
Uniform Code of Military Justice (UCMJ) by being AWOL from on or about 18
April through on or about 21 May 2000.

4.  On 30 May 2000, 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.

5.  Subsequent to receiving legal counsel, the applicant voluntarily
requested discharge for the good of the service, in lieu of trial by court-
martial. In his request for discharge, he indicated that he understood that
by requesting discharge, he was admitting guilt to the charge(s) 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 was approved, he could be deprived
of many or all Army benefits, that he could be ineligible for many or all
benefits administered by the Department of Veterans Affairs (VA), and that
he could be deprived of his rights and benefits as a veteran under both
Federal and State law.

6.  On 31 May 2000, the applicant was placed on excess leave.

7.  On 15 August 2001, the separation authority approved the applicant’s
request for discharge and directed that he receive an UOTHC discharge and
that he be reduced to the lowest enlisted grade.  On 3 October 2001, the
applicant was discharged accordingly.

8.  The DD Form 214 issued to the applicant on 3 October 2001, shows he was
separated under the provisions of chapter 10, Army Regulation 635-200, for
the good of the service in lieu of trial by court-martial.  This document
further shows he completed a total of 2 years, 3 months, and 10 days of
creditable active military service, and that he accrued 34 days of time
lost due to AWOL.  It further shows that based on the authority and reason
for his separation, he was assigned a corresponding separation program
designator (SPD) code of KFS and RE code of RE-4.

9.  On 2 July 2003, the ADRB found the applicant was experiencing family
problems at the time of his discharge that impaired his ability to serve.
Based on this mitigating factor, and on his exemplary post service conduct,
the ADRB concluded it would be appropriate to upgrade the characterization
of the applicant’s service to Under Honorable Conditions.  However, it
voted not to change the authority and reason for the applicant’s
separation, which it found was proper and equitable.  The ADRB further
indicated that the applicant was properly assigned the RE-4 code based on
the authority and reason for his discharge, and that it was not within its
purview to change the RE code.

10.  Pertinent Army regulations provide 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
covers eligibility criteria, policies, and procedures for enlistment and
processing into the Regular Army (RA) and the US Army Reserve.  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.  RE-4 applies to persons who are permanently
disqualified for continued Army service.

11.  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 states, in
pertinent part, that the SPD code of KFS is the appropriate code to assign
to Soldiers separated under the provisions of chapter 10, Army Regulation
635-200, in lieu of trial by court-martial.  The SPD/RE Code Cross
Reference Table included in the regulation establishes RE-4 as the proper
code to assign members separated with this SPD code.

12.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 10 of that regulation provides,
in pertinent part, that a member who has committed an offense or offenses
for which the authorized punishment includes a punitive discharge may at
any time after the charges have been preferred, submit a request for
discharge for the good of the service in lieu of trial by court-martial.  A
discharge UOTHC is normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request that his RE-4 code be changed and the
supporting documents he submitted were carefully considered.  However,
there is insufficient evidence to support granting the requested relief.

2.  The evidence of record confirms the applicant was charged with the
commission of an offense punishable under the UCMJ with a punitive
discharge. After consulting with defense counsel, the applicant voluntarily
requested discharge from the Army in lieu of trial by court-martial.  In
his request for discharge, he admitted guilt to the charge against him, or
of a lesser included offense, that also authorized the imposition of a bad
conduct or dishonorable discharge.  All requirements of law and regulation
were met, and the rights of the applicant were fully protected throughout
the separation process.

3.  Although the ADRB voted to upgrade the applicant’s discharge to a GD
for equity reasons, it concluded that the authority and reason for the
applicant’s separation was proper and equitable, and it voted not to change
it.  As a result, the ADRB action clearly does not support a change to the
RE-4 code that was properly assigned to the applicant.

4.  By regulation, the RE-4 code assigned the applicant was the proper code
to assign members separating under the provisions of chapter 10, Army
Regulation
635-200, in lieu of trial by court-martial.  As a result, the RE-4 code
assigned the applicant was and still is appropriate based on the authority
and reason for his separation.

5.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that the record is in error or unjust.  The applicant has failed to
submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___HUF _  ___CAK_  ___JMM _  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.




                                  _____Hubert O. Fry    ____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050010952                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2006/02/28                              |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |2001/10/03                              |
|DISCHARGE AUTHORITY     |AR 635-200 C10                          |
|DISCHARGE REASON        |In Lieu of CM                           |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  04   |100.0300                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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