PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           12 July 2001                   
	DOCKET NUMBER:   AR2001054294

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Margaret K. Patterson		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. Terry L. Placek		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that he be restored to active duty or that he be allowed to enlist by changing his reentry (RE) code.

3.  The applicant states that the Army Discharge Review Board (ADRB) upgraded his discharge but was unable to act on his request to be restored to active duty.  He provides the ADRB action as supporting evidence.

4.  The applicant's military records show that he entered active duty on 1 April 1993.  He had no record of disciplinary action until he was charged with being absent without leave (AWOL) from 8 – 31 August 1999 and with wrongfully using, with intent to deceive, a Request and Authority for Leave, DA Form 31, on          8 August 1999.  

5.  After consulting with legal counsel, the applicant voluntarily requested a discharge under the provisions of Army Regulation 635-200, chapter 10 for the good of the service in lieu of trial by court-martial.  His unit commander and two intermediate commanders had recommended approval with issuance of a general discharge.  The separation authority, however, approved the request and directed the applicant receive a discharge under other than honorable conditions.

6.  On 24 November 1999, the applicant was discharged with a discharge under other than honorable conditions, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, discharge in lieu of trial by court-martial.  He had completed 6 years, 7 months and 24 days of creditable active service and had 24 days of lost time.  He was given a separation program designator (SPD) code of KFS (voluntary discharge under Army Regulation 635-200, chapter 10) and a reentry code of 4.

7.  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 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.  A discharge under other than honorable conditions is normally considered appropriate.  However, the separation authority may direct a general discharge if such is merited by the soldier’s overall record during the current enlistment.

8.  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 U.S. 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 not qualified for continued Army service and the disqualification is not waivable.    RE-3 applies to persons not qualified for continued Army service and the disqualification is waivable.  Soldiers discharged under the provisions of Army Regulation 635-200, chapter 10 may receive a waiver to enlist.

9.  Army Regulation 635-5, Table 2-2, SPD/RE Cross Reference Table, states that when the SPD is KFS then the RE code will be 3.

10.  On 13 December 2000, the ADRB upgraded the applicant’s discharge to general under honorable conditions as a matter of equity.  The ADRB noted that his unit commander and intermediate commanders had recommended approval with a general discharge and that his misconduct was mitigated by service of sufficient merit to warrant an upgrade.

CONCLUSIONS:

1.  The Board notes that the ADRB had upgraded the applicant’s discharge to general under honorable conditions.  However, he chose to request an administrative discharge, which included an admission of guilt, rather than risk the consequences of a court-martial.  Although he may now feel that he made the wrong choice, it would not be appropriate to allow him to change his mind after the fact and restore him to active duty.

2.  The applicant was, however, given an incorrect reentry code.  Based upon the reason he was separated, he is entitled to request a waiver to enlist.  Since enlistment criteria does change, he should visit his local recruiting station to determine if he should apply for a waiver.

3.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by amending the applicant’s DD Form 214 to show his reentry code as 3.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__mkp___  __mhm___  __tlp___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Margaret K. Patterson
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR 2001054294	
SUFFIX		
RECON		
DATE BOARDED	20010712	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	110.03	
2.	100.03	
3.		
4.		
5.		
6.