IN THE CASE OF: BOARD DATE: 7 October 2010 DOCKET NUMBER: AR20100010032 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 reentry eligibility (RE) code 4 be changed to RE-3. 2. The applicant states he was granted an upgrade to a general discharge and would like to enlist in the military. He states that upon grant of his RE code change, he will enlist in the U.S. Navy. 3. The applicant provides no additional evidence 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's military personnel records show he enlisted in the Regular Army on 6 February 2002 for a period of 3 years. He completed basic combat training and advanced individual training and was awarded the military occupational specialty of 31F (Fire Support Specialist). He immediately reenlisted on 7 February 2004 for a period of 6 years. 3. The applicant served in Iraq from 21 October 2003 to 7 February 2004 and from 8 December 2004 to 15 March 2005. 4. On 2 August 2005, court-martial charges were preferred against the applicant for: * being derelict in the performance of his duties by filling his specimen bottle with water during a urinalysis * wrongfully using cocaine 5. On 12 August 2005, the applicant consulted with counsel and voluntarily requested discharge for the good of the service. On 16 August 2005, the appropriate authority approved the applicant's request for discharge in lieu of trial by court-martial and directed his service be characterized as under other than honorable conditions. 6. On 16 September 2005, the applicant was discharged under the provisions of chapter 10 of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) in lieu of trial by court-martial. The applicant was assigned a separation program designator (SPD) code of KFS and an RE code of 4. He had completed 3 years, 7 months, and 11 days of active service that was characterized as under other than honorable conditions. 7. On 8 April 2009, the Army Discharge Review Board (ADRB) reviewed the applicant's request to upgrade his discharge and determined that his discharge was properly issued, but the characterization of service was too harsh. The ADRB granted a change of characterization to under honorable conditions. However, the ADRB determined that the reason for discharge and the RE code were both proper and equitable. 8. References: a. Army Regulation 635-5-1 (Separation Program Designator Codes), then in effect, prescribed the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPD's that were to be used for these stated reasons. The regulation showed that the SPD code KFS as shown on the applicant's DD Form 214 specified the narrative reason for discharge as in lieu of trial by court-martial. b. Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program), then in effect, provided eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the U.S. Army Reserve. Table 3-1 stated that an RE-4 applied to individuals separated from their last period of service with a nonwaivable disqualification. c. The SPD/RE Code Cross-Reference Table in effect at the time showed that the appropriate RE code for SPD code KFS was RE-4. DISCUSSION AND CONCLUSIONS: 1. The applicant was discharged on 16 September 2005 under the provisions of chapter 10 of Army Regulation 635-200. The applicant was assigned an SPD code KFS and an RE code 4. 2. The applicant was granted a change in the characterization of his discharge by the ADRB. However, the reason for separation remains appropriate due to the fact the applicant requested to be discharged in lieu of a trial by court-martial. Therefore, the SPD code KFS is correct. 3. The SPD/RE Code Cross-Reference Table shows that for the SPD code KFS, an RE code 4 is assigned. Therefore, the applicant's RE code is correct. 4. In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy that requirement. 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) AR20100010032 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20100010032 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1