MEMORANDUM OF CONSIDERATION


                  IN THE CASE OF:
        

                  BOARD DATE: 21 October 2003
                  DOCKET NUMBER: AR2003088310

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Mr. Melvin H. Meyer		Chairperson
Mr. William D. Powers		Member
Mr. Frank C. Jones		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: In effect, that his reentry (RE) code of RE-4 be changed to RE-3.

APPLICANT STATES: In effect, that he was told at the time of his discharge that he would receive an RE code that would allow him to reapply for reentry into military service after a three year period. He states that it was only recently, when he made inquiries to a local recruiter, that he discovered that his
RE-4 code disqualified him from further service. He also indicates that he has been told that based on his separation in lieu of court-martial, he should have received an RE-3 code which would allow for his reenlistment with a waiver. The applicant also states that he is aware that he made a stupid and immature decision when he went absent without leave (AWOL) and did not complete his basic training. He can now only state that he was young, age 19, and very immature at the time. He states that as he looks back on it now, he understands it was the wrong decision and he should have completed his enlistment, as he surely would do now.

The applicant also states that his separation document (DD Form 214) incorrectly reflects his active duty service time. Item 12c (Net Service This Period) shows that he completed 1 year, 4 months, and 17 days of active military service, but he claims this is incorrect. He states that this service incorrectly includes the period of time that he was awaiting his discharge after he had processed out of
Fort Knox, Kentucky. He also states that since he entered the Army in March 1999 and was processed out in August 1999, he does not believe Item 12c is correct. He also states that Item 18 (Remarks) of the DD Form 214 indicates
that he was on excess leave for 449 days, which is time that must have been incorrectly included in Item 12c. He states that since he has been told that long periods of enlistment impact his eligibility to reenter the military, he also asks that this error also be corrected.

EVIDENCE OF RECORD: The applicant's military records show:

On 22 March 1999, he entered active duty in the Regular Army. On 15 May 1999, while still in basic training the applicant departed AWOL from his unit. He never completed basic training nor was he awarded a military occupational specialty. He remained AWOL for 91 days until 13 August 1999.

The specific facts and circumstances surrounding the applicant’s discharge processing are not on file. However, the record does contain a properly constituted DD Form 214 that shows that the applicant was separated on
9 November 2000. This document also confirms that the authority for the applicant’s discharge was chapter 10, Army Regulation 635-200 and the reason for his discharge was in lieu of trial by court-martial.

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The applicant’s DD Form 214 also shows that based on the authority and reason for his discharge, he was assigned a Separation Program Designator (SPD) code of KFS and an RE code of RE-4. Item 12c indicates that he completed 1 year,
4 months, and 17 days of creditable active military service. Item 18 contains an entry that indicates that he was in an excess leave status for 449 days and that this period was creditable for all purposes except for pay and allowances. Finally, Item 29 (Dates of Time Lost During the Period) confirms he accrued
91 days of time lost due to AWOL.

There is no evidence showing that the applicant has petitioned the Army Discharge Review Board (ADRB) for an upgrade or change of reason to his discharge.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may 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-marital. A discharge under the other than honorable conditions is normally considered appropriate.

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 and processing into the Regular Army (RA) and the US 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, including RA RE codes. RE-4 is the code assigned when a member is separated with a disqualification that is nonwaiverable.

Army Regulation 635-5-1 (SPD Codes) provides the specific authorities (regulatory or directive), reasons for separating soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It states, in pertinent part, that the SPD code of KFS is the appropriate code to assign to soldiers separated under the provisions of chapter 10, Army Regulation 635-200, in lieu of trial by court-martial. The SPD/RE Code Cross Reference Table establishes that
RE-4 will be the code assigned to members separated with this SPD code.

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Army Regulation 600-8-10 prescribes the policies and mandated operating tasks for the leave and pass function of the Military Personnel System. Section VIII contains guidance on excess leave. It states that excess leave is nonchargeable absence. Section XII provides the authority to grant excess leave to soldiers awaiting completion of administrative discharge proceedings. Time spent on excess leave is creditable for all purposes except pay and allowances. Service spent in an excess leave status prior to a soldiers normal expiration of term of service is creditable service.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. The applicant’s contention that his RE-4 code should be changed because
he was young and immature at the time was carefully considered. However, there is no evidence that indicates that the applicant was any less mature than other soldiers of the same age who successfully completed military service. As
a result, this factor is not sufficiently mitigating to warrant a change to his
RE-4 code at this time.

2. The applicant’s record is void of the specific facts and circumstances surrounding his discharge processing. However, it does confirm that he
was charged with an offense that was punishable under the Uniform Code
of Military Justice with a punitive discharge, and that he voluntarily elected an administrative separation in lieu of court-martial. The record also contains a properly constituted DD Form 214 that identifies the authority and reason for his discharge, and government regularity in the separation processed is presumed.

3. By regulation, the SPD code of KFS and the RE code of RE-4 are the proper codes to assign members separating under the provisions of chapter 10,
Army Regulation 635-200, in lieu of trial by court-martial. As a result, the
RE-4 code assigned the applicant at discharge was and still is appropriate based on the authority and reason for his separation.

4. In the absence of information to the contrary, the Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

5. The applicant’s assertion that the period of active duty service entered in Item 12c of his DD Form 214 is incorrect and that the 449 days he spent on excess leave should not have been included in this period was also carefully considered. However, there is insufficient evidence to support this claim.

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6. The 1 year, 4 months, and 17 days listed in Item 12c of the applicant’s
DD Form 214 accounts for the active duty service he completed between
22 March 1999 (the date he entered active duty) and 9 November 2000 (the date of his separation), minus the 91 days of time lost (AWOL) he accrued. By regulation, the 449 days the applicant spent on excess leave is creditable for all purposes except pay and allowances. In effect, this means that this excess leave period was creditable and it was appropriate to include this period in the creditable service entered in Item 12c of the applicant’s DD Form 214.

7. 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 this requirement.

8. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

MM__ __FCJ__ __WDP ___ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2003088310
SUFFIX
RECON
DATE BOARDED	2003/10/DD
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	2000/11/09
DISCHARGE AUTHORITY	AR 635-200 C10
DISCHARGE REASON	In lieu of court-martial
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 04	100.0300
2. 1021	100.0000
3.
4.
5.
6.