IN THE CASE OF: BOARD DATE: 16 August 2011 DOCKET NUMBER: AR20110001168 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 change of his reentry eligibility (RE) code from an RE-4 to an RE-3. 2. The applicant states he was young and made a mistake. It has been almost 5 years since he was discharged and he has regretted his actions since. He would like the opportunity to serve his country again. He already went through the process to get his discharge upgraded. He now just needs to get the RE code changed. 3. The applicant did not provide any evidence. CONSIDERATION OF EVIDENCE: 1. The applicant was born on 4 November 1988 and he enlisted in the Regular Army (RA) on 16 November 2005 at the age of 17. He held military occupational specialty 13B (Cannon Crewmember) and he was assigned to 2nd Battalion, 11th Field Artillery, located at Schofield Barracks, HI. 2. On 16 November 2005, court-martial charges were preferred against the applicant for * one specification of failing to go at the time prescribed to his appointed place of duty * two specifications of wrongfully using marijuana * one specification of wrongfully using ecstasy 3. On 31 January 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 of the procedures and rights that were available to him. Following consultation with legal counsel, he requested discharge under the provisions of Army Regulation 635-200 (Personnel Separation - Active Duty Enlisted Administrative Separations), chapter 10, for the good of the service - in lieu of trial by court-martial. 4. In his request for discharge, he indicated that 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 that he understood by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offense, that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions. He further acknowledged he understood that if the 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 (DVA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws. 5. His company, battalion, and brigade commanders recommended approval with the issuance of an under other than honorable conditions discharge. 6. On 5 February 2007, the separation authority approved the applicant's request for discharge in accordance with Army Regulation 635-200, chapter 10 and directed the issuance of an under other than honorable conditions discharge. 7. On 13 February 2007, he was discharged accordingly. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he completed 1 year, 2 months, and 28 days of creditable active service. Item 26 (Separation Code) of this form shows the entry "KFS" and item 27 shows the entry "4." 8. On 20 March 2009, the Army Discharge Review Board (ADRB) granted him relief in the form of an upgrade of his character of service from an under other than honorable conditions discharge to a fully honorable discharge and restored his pay grade to E-2. The ADRB also considered the narrative reason for his separation; however, it determined that the reason for separation was fully supported by the record and voted not to change it. 9. 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. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 10. 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 that the SPD code KFS is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, chapter 10, by reason of in lieu of trial by court-martial. The SPD/RE Code Cross Reference Table stipulates that an RE-4 code will be assigned to members separated under these provisions with an SPD code of KFS. 11. Army Regulation 635-200 further 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 RA and the U.S. Army Reserve (USAR). Table 3-1 included a list of the RA RE codes: a. RE-1 applies to Soldiers completing their term 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 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. DISCUSSION AND CONCLUSIONS: 1. The applicant’s records show he was charged with the commission of offenses 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. He voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial. 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. 2. The evidence of record further confirms that his RE code was assigned based on the fact that he was discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. The RE code associated with this type of discharge is an RE-4. Therefore, he received the appropriate RE code associated with his discharge and he is not entitled to the requested relief. 3. The applicant was 17 years of age at the time of his enlistment and 18 years of age at the time of his offenses. There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military service obligations. Additionally, there is no evidence in the available record and the applicant has not provided sufficient evidence showing that his acts of misconduct were the result of his age. 4. Although the ADRB upgraded the character of his service to fully honorable, the ADRB considered the reason for his separation and found this reason to be proper and equitable. Furthermore, the ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits. 5. In view of the foregoing, there is no basis for granting the applicant's request. 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) AR20110001168 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20110001168 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1