RECORD OF PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 15 January 2004
         DOCKET NUMBER: AR2003089505


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

Mr. Carl W. S. Chun		Director
Ms. Rosa M. Chandler		Analyst

The following members, a quorum, were present:

Ms. Margaret K. Patterson		Chairperson
Mr. Allen L. Raub		Member
Mr. William D. Powers		Member

         The applicant and counsel if any, did not appear before the Board.

         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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THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1. The applicant requests that his reentry (RE) code of RE-4 in Item 27 of his DD Form 214 (Certificate of Release or Discharge From Active Duty) be changed to one that will permit him to reenter the military.

2. The applicant states that, at the time of separation, his legal counsel led him to believe he could reenter the military after 6 months. He does not remember being advised that his RE Code of RE-4 would prevent reenlistment.

3. The applicant provides nothing in support of his request.

CONSIDERATION OF EVIDENCE:

1. The applicant is requesting correction of an error or injustice which occurred on 27 October 1999. The application submitted in this case is dated 17 February 2003.

2. 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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so. In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3. On 26 October 1996, the applicant enlisted in the U.S. Army Reserve Delayed Entry Program (DEP) for 8 years. On 21 November 1996, he was discharged from the DEP and enlisted in the Regular Army for 3 years and training in military occupational specialty (MOS) 13B (Cannon Crewmember).

4. On 29 November 1996, he was assigned to Fort Sill, Oklahoma for OSUT (one-station unit training). On 4 January 1997, he left his unit in an absent without leave (AWOL) status and he remained AWOL until he returned to military control at the Personnel Control Facility, Fort Knox, Kentucky on 22 August 1997. The applicant was charged with this period of AWOL, but the available record does not show the disposition of the charge.

5. On 17 September 1997, while assigned to the PCF, Fort Knox, the applicant signed a waiver of his enlistment contract for training in MOS 19D (Calvary Scout), a shortage MOS. The reason given for the waiver was that it would be more cost effective to train the applicant at Fort Knox in MOS 19D than to send him back to Fort Sill. The record shows he never completed the training requirements and he was never awarded an MOS.

6. On 8 October 1997, the applicant left Fort Knox in an AWOL status and he remained AWOL until he returned to the PCF at Fort Sill on 15 May 1999. On 18 May 1999, charges were preferred against the applicant for this period of AWOL.

7. On 20 May 1999, the applicant consulted with legal counsel and requested discharge under the provisions of chapter 10, Army Regulation (AR) 635-200 for the good of the service in lieu of trial by court-martial. He authenticated a statement with his signature acknowledging that he understood the ramifications and effects of receiving a UOTHC discharge. He declined to submit a statement in his own behalf.

8. On the same date, the applicant declined a physical examination prior to separation.

9. On 15 October 1999, the approval authority approved the applicant's request for discharge under the provisions of chapter 10, AR 635-200 and directed that he be separated with a UOTHC discharge.

10. The applicant's DD Form 214 shows that he was separated on 27 October 1999 under the provisions of chapter 10, AR 635-200 with a UOTHC discharge due to conduct triable by a court-martial. He had completed 1 year, 3 months and 23 days of active military service. He had 584 days of lost time due to being AWOL and in pretrial confinement. His DD Form 214 shows a Separation Code (Item 26) of "KFS" and an RE Code of RE-4.

11. There is no evidence that the applicant ever applied to the Army Discharge Review Board for review of his discharge under that board's 15-year statute of limitations.

12. AR 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 submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt. Although an honorable or general discharge was authorized, a UOTHC discharge was considered appropriate.

13. Pertinent Army regulations provide that prior to discharge or release from active duty, individuals will be assigned RE codes based on the reason for discharge. AR 601-210 covers eligibility criteria, policies, and procedures for enlisting and processing into the RA and the eligibility for prior service applicants for enlistment. That chapter includes a list of Armed Forces RE codes and RA RE codes.
14. An RE code of RE-4 and a Separation Code of "KFS" applies to persons not qualified for continued Army service. Those individuals discharged under the provisions of chapter 10, Army Regulation 635-200, with a UOTHC discharge, in lieu of trial by court-martial, are assigned RE-4 codes and are disqualified from further service. The disqualification is nonwaivable.

DISCUSSION AND CONCLUSIONS:

1. The applicant voluntarily requested an administrative separation under the provisions of chapter 10, Army Regulation 635-200 to avoid trial by court-martial. There is no indication that the request was made under coercion or duress.

2. The evidence available supports the characterization of service and the assigned RE Code of RE-4.

3. The evidence also indicates that the applicant's assigned RE-code of
RE-4 was appropriate at the time of separation and that it is still appropriate.

4. The US Army does not have, nor has it ever had, a policy that provides for a prior service member to automatically reenlist after a certain amount of time. Each case is decided on its own merits.

5. Records show the applicant should have discovered the error or injustice now under consideration on 21 November 1996; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 20 November 1999. However, the applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to file in this case.

BOARD VOTE:

________ ________ ________ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

__mkp___ __alr___ __wdp___ DENY APPLICATION

The Board determined that the evidence presented and the merits of this case are insufficient to warrant the relief requested, and therefore, it would not be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.



                           Margaret K. Patterson
                  ______________________
                  CHAIRPERSON

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INDEX

CASE ID	AR2003089505
SUFFIX
RECON
DATE BOARDED	20040115
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	112.0000
2.
3.
4.
5.
6.