IN THE CASE OF:  
 
  BOARD DATE: 5 September 2023 
 
  DOCKET NUMBER: AR20230004997 
 
 
APPLICANT REQUESTS: an upgrade of his under other than honorable conditions characterization of service to an under honorable conditions (general) charter of service and an upgrade of Reentry (RE) code from "RE-4" to "RE-3." 
 
APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: 
 
• DD Form 293 (Application for the review of Discharge) 

• DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 22 July 1986 


 
FACTS: 
 
1.  The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, 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, when he was discharged, he was informed that his reentry code would be a “3”, so he could reenlist. His reentry code is now a “4” and he is unable to rejoin any branch of service. 
 
3.  The applicant enlisted in the Regular Army on 20 April 2004. 
 
4.  Two DA Forms 4187 (Personnel Action) dated 23 August 2004 and 18 October 2004 show the applicant was absent without leave (AWOL), from his unit on or about 24 July 2004 to on or about 4 October 2004. 
 
5.  Court-martial charges were preferred against the applicant on 18 October 2004 for violations of the Uniform Code of Military Justice. His DD Form 458 (Charge Sheet) shows he was charged with absenting himself from his unit without leave from on or about 24 July 2004 to on or about 4 October 2004. 
 
6.  On 18 October 2004 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 Uniform Code of Military Justice, the possible effects of a discharge under other than honorable conditions if this request was approved, and of the procedures and rights available to him. Following this consultation, the applicant voluntarily requested discharge under the provision of Army Regulation (AR) 635-200 (Personnel Separation-Enlisted Personnel), chapter 10, in lieu of trial by court-martial. He made the following acknowledgements in his request: 
 
 a.  He acknowledged he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person. He had been advised of the implications that are attached to it. By submitting this request for discharge, he acknowledge that he understood the elements of the offense(s) charged and is guilty of the charge(s) against him or of (a) lesser included offense(s) therein contained which also authorize(s) the imposition of a bad conduct or dishonorable discharge. Moreover, he hereby states that under no circumstances do he desire further rehabilitation, for he have no desire to perform further military service. 
 
 b.  He further acknowledged he understood that if his discharge request were approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. 
 
 c.  He was advised he could submit any statements he desired in his behalf. He did not provide a statement. 
 
7.  The applicant's immediate commander recommended approval of his request for discharge in lieu of trial by court-martial on 20 October 2004, and further recommend an under other than honorable conditions discharge. 
 
8.  On 22 October 2004, the separation authority approved the applicant's request for discharge under the provisions of AR 635-200, chapter 10 and ordered the issuance of an under other than honorable condition discharge and the applicant’s reduction to private/E-1. 
 
9.  The applicant was discharged on 3 November 2004, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of court-martial. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows his character of service was under other than honorable conditions, and he was credited with 4 months and 2 days of net active service, with one period of lost time from 24 July 2004 to 3 October 2004. Additionally, he received a separation code of "KFS" and a reentry code of " 4," and his DD Form 214 did not reflect any personnel awards. 
 
10.  On 12 February 2014, the Army Discharge Review Board reviewed the applicant's petition for an upgrade of his discharge. After careful consideration, the Board 
determined that he was properly and equitable discharged. Accordingly, his request for relief was denied. 
 
11.  Regulatory guidance, in effect at the time provided that a member who has committed an offense or offenses, the punishment which under uniform code of military justice and the Manual for Courts-Martial, 2002 (MCM 2002), includes a bad conduct or dishonorable discharge, may submit a request for discharge in lieu of trial by courts-martial. A discharge under other than honorable conditions is normally considered appropriate. 
 
12.  The Board should consider the applicant's petition and his service in accordance with the published equity, injustice, or clemency determination guidance 
 
 
BOARD DISCUSSION: 
 
After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, the applicant's record of service, the frequency and nature of the applicant's misconduct and the reason for separation. The applicant was charged with commission of an offense punishable under the UCMJ with a punitive discharge (AWOL from 24 July to 4 October 2004). After being charged, he consulted with counsel and requested discharge under the provisions of AR 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial and carry an under other than honorable conditions characterization of service. The applicant provided insufficient evidence of post-service achievements, letters of reference/support, or evidence of a persuasive nature in support of a clemency determination. Additionally, the applicant's narrative reason for separation was assigned based on the fact that he was separated under the provisions of chapter 10 of AR 635-200, in lieu of trial by court-martial. Such discharge has a corresponding Separation Code of KFS, and this Separation Code had a corresponding RE Code of 4 at the time of his discharge. Based on a preponderance of evidence, the Board determined that the character of service, Separation Code, and RE Code the applicant received upon separation were not in error or unjust. 
 
  
BOARD VOTE: 
 
Mbr 1 Mbr 2 Mbr 3 
 
: : : GRANT FULL RELIEF 
 
: : : GRANT PARTIAL RELIEF 
 
: : : GRANT FORMAL HEARING 
 
xx: 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. 
 
  9/5/2023

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, United States Code, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3-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 and the U.S. Army Reserve. Table 3-1 included a list of the Regular Army 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.  
 
3.  Army Regulation (AR) 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  
 
 a. Chapter 10 provides 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 after court-martial charges are preferred against the soldier, where required after referral, until final action by the court-martial convening authority. 
 A discharge under other than honorable conditions is normally appropriate for a Soldier who is discharged in lieu of trial by court-martial. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record during the current enlistment.  
 
 b.  An honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier'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.  
 
 c.  A general discharge is a separation from the Army under honorable conditions. When authorized, it is used for a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  
 
 d.  A discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct or for the good of the service.  
 
4.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records 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. This guidance does not mandate relief but provides standards and principles to guide Boards in application of their equitable relief authority.  
 
 a.  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//