IN THE CASE OF: BOARD DATE: 17 April 2023 DOCKET NUMBER: AR20220010474 APPLICANT REQUESTS: his Reentry Eligibility (RE) code be changed to show a more favorable code. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge) * Self-authored statement * Promotion Orders * Revised DD Form 214 (Certificate of Release or Discharge from Active Duty) * County of Inyo, Independence, CA letter * Santa Barbara Community College, CA transcript FACTS: 1. The applicant did not file within the 3-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, in effect, his petition to the Army Discharge Review Board (ADRB) was partially successful. The ADRB found his discharge was unjust and, as a result, upgraded his characterization of service from "Under Other Than Honorable Conditions (UOTHC)" to "Under Honorable Conditions (General)" and restored his rank. Unfortunately, his RE code was left unchanged and he fears having an RE code of "4" and being barred from reenlistment may hinder his chances of starting a career in law enforcement. a. He was a good Soldier with no history of disciplinary problems. He worked hard at being a well-trained Soldier. He successfully completed Ranger school and was awarded the Ranger Tab. He was awarded the Army Good Conduct Medal, promoted to the rank/grade of sergeant (SGT)/E-5, appointed as a Team Leader, and completed a 9-month deployment in Iraq. b. When his Command Sergeant Major (CSM) was informed that he was leaving the unit to attend the Special Forces Qualification course, he was immediately called into the CSM's office and chastised and threatened with being written up on his Noncommissioned Officer Evaluation Report for being disloyal to his unit. The CSM refused to endorse his platoon leader's recommendation for him to be awarded an Army Commendation Medal and revoked his 10-day leave. c. The offense that led to his separation was an off-duty altercation between him and a former comrade in his platoon. The fight resulted in an exchange of apologies and a continuance of friendship. Once the CSM was informed about the altercation, he had no remorse and immediately pushed for the harshest punishment. He was not afforded an opportunity for any form of rehabilitation, instead he was punished to the full extent of the Uniform Code of Military Justice (UCMJ). d. Since leaving the Army, he has acquired many different trade skills, received an Associates degree with a grade point average of 3.16, and is a hardworking, law abiding citizen. He is currently attempting to start a career in law enforcement as a State of California Fish and Wildlife Game Warden, or with the County of Inyo Sheriff Department. 3. On 11 January 2000, the applicant enlisted in the Regular Army for a period of 4 years in the rank/grade of private (PV1)/E-1. He served in Iraq in support of Operation Iraqi Freedom from 5 August 2003 until 2 April 2004. He was promoted to the rank of SGT on 1 May 2004. 4. A DD Form 458 (Charge Sheet) shows charges were preferred against the applicant on 30 July 2004 for violation of the UCMJ, on or between 7 July 2004 and 8 July 2004 for the following Charges and Specifications: * Charge I – Violation of Article 92: * Specification 1 – failing to provide his supervisor a detailed plan of action before going to an establishment where alcohol was served and failing to have a paratrooper serves as his airborne buddy designated driver * Specification 2 – violating a lawful general regulation by wrongfully engaging in a prohibited relationship with a specialist (SPC)/E-4 that created a clearly predictable adverse impact on discipline, authority, morale or ability of his unit to accomplish its mission * Charge II – Violation of Article 128: Specification – unlawfully striking SPC JMB on the head and body with his fists * Charge III – Violation of Article 134: * Specification 1 – being drunk and disorderly * Specification 2 – as a result of wrongful overindulgence in intoxicating liquor, being incapacitated for the proper performance of his duties 5. On 31 August 2004, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), Chapter 10, in lieu of trial by court-martial. He consulted with legal counsel and was advised of the basis for the trial by court-martial; the maximum permissible punishment authorized under the UCMJ; the possible effects of a UOTHC discharge; and the procedures and rights that were available to him. 6. On 1 September 2004, the applicant's Defense Counsel rendered a memorandum through the applicant's chain of command to the General Court-Martial Convening Authority wherein he explained in detail the altercation between the applicant and SPC JMB. He asked leadership to please consider the applicant's young age, minimal time in service, and the fact that he had recently been promoted to SGT/E-5. 7. On 29 May 2000, the separation authority approved the applicant's request for discharge in lieu of trial by court-martial, with his service characterized as UOTHC. He further directed the applicant be reduced to the lowest enlisted pay grade. 8. Orders and the applicant's DD Form 214 confirm he was discharged on 11 October 2004 in the rank/grade of PV1/E-1. His original DD Form 214 shows, in: a. block 12 (Record of Service) – He completed 4 years, 9 months, and 1 day of net active service this period. b. block 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) – He was awarded or authorized the: * Army Good Conduct Medal * Global War on Terrorism Expeditionary Medal * Global War on Terrorism Service Medal * Noncommissioned Officer's Professional Development Ribbon * Army Service Ribbon * Combat Infantryman Badge * Parachutist Badge * Ranger Tab c. block 18 (Remarks) – "IMMEDIATE REENLISTMENTS THIS PERIOD – 11 January 2000 until 30 October 2002. He completed his first full term of service. He served in Iraq from 5 August 2003 until 2 April 2004. d. block 24 (Character of Service) - His characterization of service was UOTHC. e. block 25 (Separation Authority) - The authority for his separation was Army Regulation 635-200, Chapter 10. f. block 26 (Separation Code) - His Separation Program Designator (SPD) code was "KFS." g. block 27 (Reentry Code) - His Reentry Eligibility (RE) Code was "4." h. block 28 (Narrative Reason for Separation) - The narrative reason for his separation was "In Lieu of Trial by Court-Martial." 9. Army Regulation 635-200 states a Chapter 10 is a voluntary discharge request in- lieu of trial by court martial. In doing so, he would have waived his opportunity to appear before a court-martial and risk a felony conviction. A characterization of UOTHC is authorized and normally considered appropriate; however, a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service, he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. 10. The applicant petitioned the ADRB for an upgrade of his service characterization based upon his overall service record and the severity of the punishment for an isolated event. The ADRB voted unanimously to upgrade his characterization of service and to leave the reason for his separation unchanged. a. On 27 March 2008, the applicant was informed that his characterization had been changed to General, Under Honorable Conditions. b. The applicant was provided a corrected DD Form 214 reflecting his upgraded character of service. The narrative reason for separation and RE code remained unchanged from his original DD Form 214. 11. The applicant provides the following documents: a. A letter that shows the applicant completed an entry-level law enforcement test batter for Inyo County on 17 February 2021. b. A Santa Barbara Community College transcript that shows he earned an Associate Degree with a grade point average of 3.16 on 14 December 2013. ? BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is sufficient evidence to grant relief. The applicant’s contentions, his military record, and regulatory guidance were carefully considered. The Board noted the applicant’s request for an upgrade was previously awarded by the Army Discharge Review Board. The Board also considered the applicant’s service prior to the misconduct and agreed the punishment was harsh. For that reason, the Board recommended that granting the requested relief was appropriate. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 xx xx xx GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his DD Form 214 for the period ending 11 October 2004 by showing in Block 27, RE code "3". 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 (Regular Army and Army Reserve Enlistment Program), in effect at the time, covered eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and U.S. Army Reserve. It stated that individuals would be assigned RE codes based on their service records or the reason for discharge prior to discharge or release from active duty. Table 3-1 included a list of Regular Army RE codes. * RE code "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 * RE code "2" applies to Soldiers separated prior to the effective date of this regulation and will not be used * RE code "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 unless a waiver is granted * RE code "4" applies to Soldiers separated from their last period of service with a non-waivable disqualification 3. Army Regulation 635-5-1 (SPD) 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. It states that the separation code "KFS" is an 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." Additionally, the SPD/RE Code Cross Reference Table established that RE code "4" an appropriate reentry code to assign to Soldiers separated under this authority and for this reason. 4. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Chapter 10 stated a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could, 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. Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally considered appropriate. At the time of the applicant's separation the regulation provided for the issuance of an UOTHC discharge. b. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220010474 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1