IN THE CASE OF: BOARD DATE: 5 February 2009 DOCKET NUMBER: AR20080017228 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 that his separation code and reentry (RE) code be changed. 2. The applicant states, in effect, that he noticed his separation code and RE code needed to be changed after learning he was eligible for monetary pay. 3. The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) in support of his application. CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. 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 Army Board for Correction of Military Records (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. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant enlisted in the Regular Army on 1 August 1979 and trained as a motor transport operator. 3. The facts and circumstances surrounding the applicant’s discharge are not contained in the available records. However, the applicant’s DD Form 214 shows that he was discharged under other than honorable conditions on 4 February 1993 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial. He had served a total of 13 years, 6 months, and 4 days of creditable active service. 4. Item 25 (Separation Authority) on the applicant's DD Form 214 shows the entry, "AR [Army Regulation] 635-200, CHAP [Chapter] 10." Item 26 (Separation Code) on his DD Form 214 shows the entry, "KFS." Item 27 (Reenlistment Code) on his DD Form 214 shows the entry, "RE3." Item 28 (Narrative Reason for Separation) on his DD Form 214 shows the entry, "FOR THE GOOD OF THE SERVICE-IN LIEU OF COURT-MARTIAL." 5. On 10 October 1997, the Army Discharge Review Board upgraded the applicant’s discharge to a general discharge. 6. On 17 July 2008, the ABCMR corrected the applicant’s records to show he applied to the Defense Finance and Accounting Service (DFAS) in a timely manner to obtain any monetary benefits to which he might have been entitled by virtue of the change in his discharge. Subsequently, payments were made by DFAS for 60 days of accrued leave paid in the amount of $3,413.40. 7. Army Regulation 635-5-1 (Separation Program Designator Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons. The regulation in effect at the time stated the reason for discharge based on separation code “KFS” is “For the good of the service - in lieu of trial by court-martial” and the regulatory authority is Army Regulation 635-200, chapter 10. 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 processing into the Regular Army 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. 9. RE-3 applies to persons who are not qualified for continued Army service, but the disqualification is waivable. 10. RE-1 applies to persons completing an initial term of active service who were fully qualified when last separated. 11. The Separation Program Designator Code/Reentry Code Cross Reference Table, dated 2 October 1989, shows that Soldiers given an SPD [Separation Program Designator] of "KFS” will be given an RE code of 3. DISCUSSION AND CONCLUSIONS: 1. Even though the facts and circumstances surrounding the applicant’s discharge process are not available the DD Form 214 that he was issued upon discharge shows he was separated under the provisions of Chapter 10, Army Regulation 635-200, for the good of the service-in lieu of trial by court-martial. Based on the authority and reason for separation, he was assigned a SPD code of KFS and an RE code of RE-3. 2. Therefore, based on the available evidence administrative regularity is presumed in his discharge process. The applicant’s RE code and his separation code were appropriate at the time they were assigned and they are still appropriate. RE codes are not changed for the sole purpose of supporting entitlement to monetary benefits. 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) AR20080017228 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20080017228 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1