IN THE CASE OF:  

BOARD DATE:  27 May 2021

DOCKET NUMBER:  AR20210005637


APPLICANT REQUESTS:  in effect, his under other than honorable conditions 
(UOTHC) discharge be upgraded to either an under honorable conditions (general) 
discharge or an honorable discharge, and correction of his DD Form 214 (Certificate of 
Release or Discharge from Active Duty) to show he was separated in his restored 
rank/grade with a more favorable reentry (RE) code.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record Under the Provisions 
of Title 10, U.S. Code, Section 1552), dated 26 June 2020

FACTS:

1.  The applicant did not file within the three-year time frame provided in Title 10, U.S. 
Code (USC), Section 1552 (b); however, the Army Board for Correction of Military 
Records (ABCMR) conducted a substantive review of this case and determined it is in 
the interest of justice to excuse the applicant's failure to timely file.

2.  The applicant states his separation was based upon missed child support payments.  
The incident was over ten years ago and has been resolved; there are no additional 
issues at this time.  He would like an opportunity to reenlist in the Army if possible.  
However, his RE code is a hindrance to the process.  He has corrected the issues that 
were the catalyst for his separation and has had no additional issues since his 
separation.

3.  The applicant enlisted in the Regular Army on 15 November 2006, in the rank/grade 
of specialist (SPC)/E-4.

4.  The applicant’s record contains two DA Forms 4187 (Personnel Action) and a 
DD Form 553 (Deserter/Absentee Wanted by the Armed Forces) that show he departed 
his unit of assignment in an absent without leave (AWOL) status on 19 March 2007, 
was reported as a deserter, and was ultimately dropped from the rolls of his unit on 
19 April 2007.

5.  The applicant's record contains a DD Form 616 (Report of Return of Absentee) that 
shows he was apprehended by civil authorities on 25 July 2007, for driving on a 
suspended license.  He was confined in a county jail and was returned to military control 
on 26 July 2007.

6.  Court-martial charges were preferred against the applicant on 13 August 2007 for 
violations of the Uniform Code of Military Justice (UCMJ).  His DD Form 458 (Charge 
Sheet) shows he was charged with being AWOL, from on or about 19 March 2007 to on 
or about 26 July 2007.

7.  The applicant consulted with legal counsel on 13 August 2007 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 UOTHC discharge, 
and the procedures and rights that were available to him.

	a.  Subsequent to receiving legal counsel, the applicant voluntarily requested 
discharge under the provision of Army Regulation 635-200 (Active Duty Enlisted 
Administrative Separations), Chapter 10, for the good of the service.  In his request for 
discharge, he acknowledged his understanding 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 was 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.

	b.  He elected not to submit a statement in his own behalf.

8.  The applicant’s commander recommended approval of his discharge request and 
further recommended that he be discharged UOTHC.

9.  The separation authority approved the applicant's request for discharge on 9 October 
2007, under the provision of Army Regulation 635-200, Chapter 10, and directed his 
reduction to the lowest enlisted grade and the issuance of a UOTHC discharge.

10.  The applicant was discharged on 24 October 2007, under the provisions of Army 
Regulation 635-200, Chapter 10, for the good of the service - in lieu of trial by court-
martial.  The DD Form 214 he was issued confirms he was discharged in the lowest 
enlisted grade and his service was characterized as UOTHC.  His separation code was 
"KFS" and his RE code was "4."

11.  The applicant was charged due to the commission of an offense punishable under 
the UCMJ with a punitive discharge.  Subsequent to being charged, he consulted with 
counsel and requested discharge under the provisions of Army Regulation 635-200, 
Chapter 10.  Such discharges are voluntary requests for discharge in lieu of trial by 
court-martial.

12.  The applicant’s record is void of documentation, and he has not provided 
documentation that supports his contention that his separation was based on his failure 
to pay child support.

13.  The Board should consider the applicant's statement in accordance with the 
published equity, injustice, or clemency determination guidance.

BOARD DISCUSSION:

The Board carefully considered the applicants request, supporting documents, evidence 
in the records and published DoD guidance for consideration of discharge upgrade 
requests.  The Board considered the applicant's statement, his record of service, the 
frequency and nature of his misconduct, the reason for his separation and whether to 
apply clemency.  The Board found insufficient evidence of in-service mitigating factors 
for the misconduct and the applicant provided no evidence of post-service 
achievements or letters of support to weigh a clemency determination.  Based on a 
preponderance of evidence, the Board determined that the character of service the 
applicant received upon separation was not in error or unjust.

After reviewing the application and all supporting documents, the Board found that none 
of the requested relief is not warranted.

BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:XXX	:XX	:XX	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.


 

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.

REFERENCES:

1.  Title 10, USC, Section 1552(b), provides that applications for correction of military 
records must be filed within three years after discovery of the alleged error or injustice.  
This provision of law also allows the ABCMR to excuse an applicant's failure to timely 
file within the three-year statute of limitations if the ABCMR determines it would be in 
the interest of justice to do so.

2.  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 provides a list 
of RE codes.

*	RE code "1" applies to Soldiers completing their term of active service, who are 
considered qualified for enlistment if all other criteria are met
*	RE code "2" is no longer in use but applied to Soldiers separated for the 
convenience of the government, when reenlistment is not contemplated, who are 
fully qualified for enlistment/reenlistment
*	RE code "3" applies to Soldiers who are not considered fully qualified for reentry 
or continuous service at time of separation, whose disqualification is waivable – 
they are ineligible unless a waiver is granted
*	RE code "4" applies to Soldiers separated from last period of service with a non-
waivable disqualification

3.  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 separation codes to be entered on the DD Form 214.  At the time, 
this regulation prescribed the separation code "KFS" as the appropriate code to assign 
to Soldiers separated under the provisions of Army Regulation 635-200, Chapter 10, 
based on court-martial (other).  Additionally, the SPD/RE Code Cross Reference Table 
established RE code "4" as the proper reentry code to assign to Soldiers separated 
under this authority and for this reason.

4.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted 
personnel.  The version in effect at the time provided that:

	a.  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.

	b.  A general discharge is a separation from the Army under honorable conditions.  
When authorized, it is issued to Soldiers whose military record is satisfactory but not 
sufficiently meritorious to warrant an honorable discharge.

	c.  Chapter 10 provided that a member who committed an offense or offenses under 
the UCMJ, for which the authorized punishment included a punitive discharge, could 
submit a request for discharge for the good of the service at any time after court-martial 
charges were preferred.  Commanders would ensure that an individual was not coerced 
into submitting a request for discharge for the good of the service.  Consulting counsel 
would advise the member concerning the elements of the offense or offenses, the type 
of discharge normally given under the provisions of this chapter, the loss of Department 
of Veterans Affairs (VA) benefits, and the possibility of prejudice in civilian life because 
of the characterization of such a discharge.  A UOTHC discharge was normally 
considered appropriate.

5.  The Under Secretary of Defense for Personnel and Readiness issued guidance to 
Service Discharge Review Boards and Service Boards for Correction of Military/Naval 
Records on 25 July 2018, regarding equity, injustice, or clemency determinations.  
Clemency generally refers to relief specifically granted from a criminal sentence.  
Boards for Correction of Military/Naval Records may grant clemency regardless of the 
court-martial forum.  However, the guidance applies to more than clemency from a 
sentencing in a court-martial; it also applies to any other corrections, including changes 
in a discharge, which may be warranted on equity or relief from injustice grounds.  

	a.  This guidance does not mandate relief, but rather provides standards and 
principles to guide Boards in application of their equitable relief authority.  In 
determining whether to grant relief on the basis of equity, injustice, or clemency 
grounds, Boards shall consider the prospect for rehabilitation, external evidence, sworn 
testimony, policy changes, relative severity of misconduct, mental and behavioral health 
conditions, official governmental acknowledgement that a relevant error or injustice was 
committed, and uniformity of punishment.  

	b.  Changes to the narrative reason for discharge and/or an upgraded character of 
service granted solely on equity, injustice, or clemency grounds normally should not 
result in separation pay, retroactive promotions, and payment of past medical expenses 
or similar benefits that might have been received if the original discharge had been for 
the revised reason or had the upgraded service characterization.

//NOTHING FOLLOWS//


ABCMR Record of Proceedings (cont)	 AR20210005637


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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