RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        25 August 2005
      DOCKET NUMBER:  AR20040010893


      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             |
|     |Mr. David S. Griffin              |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Margaret K. Patterson         |     |Chairperson          |
|     |Mr. Ronald E. Blakely             |     |Member               |
|     |Ms. Linda M. Baker d              |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, through his Congressional representative, that
his reentry eligibility (RE) code, currently RE-4, be changed to RE-3.  In
addition, the applicant's Congressional representative requests that the
applicant's under other than honorable discharge be upgraded to an
honorable discharge.

2.  The applicant states, in effect, if the RE code is changed, he could
still serve in the Army National Guard.

3.  The applicant provides, through his Congressional representative, a
copy of his DD Form 214 (Certificate of Release or Discharge from Active
Duty) with a separation date of 7 September 2000.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred
on 7 September 2000, the date of his discharge.  The application submitted
in this case is dated 22 July 2004 and was received on 18 November 2004.

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 limitations 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.  The applicant's military records show that he initially entered active
service on 12 August 1993.  On 29 September 1993, the applicant was
released from active duty in an entry level status and transferred back to
his unit in the New Hampshire Army National Guard.  He had served 1 month
and 18 days of active service.

4.  On 15 February 1996, the applicant again entered active service.  On 19
July 1996 he was released from active duty due to completion of required
active service and transferred back to his unit in the Maine Army National
Guard.  He had completed 5 months and 5 days of active service
characterized as honorable.

5.  On 15 May 1997, the applicant enlisted in the U.S. Army for a period of

4 years.
6.  The applicant's records show that he was absent without leave (AWOL)
from 14 December 1998 and dropped from the rolls on 13 January 1999.
Records show the applicant was apprehended by civil authorities and
returned to military control on 10 June 1999.

7.  On 21 June 1999, the applicant was charged with being AWOL during the
period from 14 December 1998 to 10 June 1999.

8.  On 21 June 1999, the applicant voluntarily requested discharge in lieu
of trial by court-martial.  He acknowledged that he was making the request
of his own free will and acknowledged that he was guilty of the offense
with which he was charged.  He further acknowledged that he was afforded
the opportunity to speak with counsel prior to making this request.  In his
request, the applicant acknowledged that he was advised he may be furnished
an Under Other Than Honorable Conditions Discharge Certificate; that he
would be deprived of many or all Army benefits; that he may be ineligible
for many or all Veterans Administration benefits; and that he may expect to
encounter substantial prejudice in civilian life because of an under other
than honorable conditions discharge.

9.  On 29 May 2000, the appropriate authority approved the applicant's
request for discharge in lieu of court-martial, directed that the applicant
be reduced to private/pay grade E-1, and that his characterization of
service be under other than honorable conditions.

10.  On 7 September 2000 the applicant was discharged under the provisions
of Chapter 10 of Army Regulation 635-200, due to conduct triable by court
martial, assigned a separation program designator code (SPD) code of KFS,
and assigned a RE code of RE-4.  He had completed 2 years, 9 months and 25
days of active service and had 176 days of time lost.

11.  The law requires that the Army Discharge Review Board, under Title 10,
United States Code (USC), Section 1553, review discharge appeals filed
within 15 years from the date of separation.  Because it has been less than

15 years since his discharge, the applicant has an administrative remedy
available to request an upgrade of his discharge under conditions other
than honorable to an honorable discharge under the provisions of Title 10,
United States Code, Section 1553.  As a result, the issue of the
applicant's discharge being upgraded to an honorable discharge will not be
discussed further in these proceedings.

12.  Army Regulation 635-200 (Active Duty Enlisted Administrative
Separations) sets forth the basic authority for the administrative
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-martial.  A
discharge under other than honorable conditions is normally considered
appropriate.

13.  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
(Regular Army and Army Reserve Enlistment Program) 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 Regular
Army RE codes.

      RE-3 applies to a person who is not considered fully qualified for
reentry or continuous service at the time of separation, but
disqualification is waivable.

      RE-4 applies to persons separated from last period of service with a
non-waivable disqualification.  This includes anyone with a Department of
the Army imposed bar to reenlistment in effect at the time of separation,
or separated for any reason (except length of service retirement ) with 18
or more years of service.

14.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes),
then in effect, 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 shows that the SPD code “KFS” as
shown on the applicant’s DD Form 214 specifies the narrative reason for
discharge as “In lieu of Trial by Court-Martial."

15.  The Separation Program Designator Code SPD/Reentry (RE) Code Cross-
Reference Table, dated 31 March 2003, shows that the appropriate RE code
for the SPD code of KFS is RE-4.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his reentry eligibility (RE) code,
currently RE-4, should be changed to RE-3 so he can join the National
Guard.
2.  The ABCMR does not correct records solely for the purpose of
establishing eligibility for other programs or benefits.

3.  The applicant was discharged in lieu of court-martial.  According to
Army Regulations, the RE-4 assigned to the applicant at the time of his
discharge is correct.

4.  In order to justify correction of a military record the applicant must,
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.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 7 September 2000, the date of his
discharge; therefore, the time for the applicant to file a request for
correction of any error or injustice expired on 6 September 2003.  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 timely file in this case.

BOARD VOTE:

__        __  __          _  ___        _  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__mkp___  ____reb _  ____lmb _  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would 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.  Therefore, there is insufficient basis to waive the
statute of limitations for timely filing or for correction of the records
of the individual concerned.



                                          Margaret K. Patterson
                              __
                                       CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040010893                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050825                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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