RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        20 October 2005
      DOCKET NUMBER:  AR20050001859


      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. John J. Wendland, Jr.         |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John T. Meixell               |     |Chairperson          |
|     |Mr. James B. Gunlicks             |     |Member               |
|     |Ms. Jeanette R. McCants           |     |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, in effect, that his Reentry (RE) Code be
corrected from an RE-4 to an RE-3.

2.  The applicant states, in effect, that he did not receive a court-
martial under the Uniform Code of Military Justice (UCMJ), but was out-
processed pending a court-martial.  He requests correction of his RE Code
because he desires to reenter the U.S. Army and RE-4 is not a waiverable RE
Code.

3.  The applicant provides a copy of his DD Form 214 (Certificate of
Release or Discharge from Active Duty), with an effective date of 20
November 2001; DA Form 3975-R-E (Military Police Report), dated 20 July
2000; and a letter from the Chief, Policy and Eligibility Inquiries Branch,
Retention Management Division, Headquarters, U.S. Total Army Personnel
Command, Alexandria, Virginia, dated 26 August 2003.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 20 November 2001, the date of his discharge from the U.S. Army.
 The application submitted in this case is dated 31 January 2005.

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 records show that he initially enlisted in the U.S.
Army Reserve on 8 July 1998.  He entered active duty in the Regular Army on
30 June 1999 for a period of 3 years, completed basic combat training and
advanced individual training, was awarded military occupational specialty
11B
(Infantryman), and achieved the rank of private first class.  At the time
of his discharge the applicant had completed 2 years, 3 months, and 6 days
total active service.  The record documents no acts of valor, significant
achievement, or service warranting special recognition, and confirms that
the awards he received during his active duty tenure were the Army Service
Ribbon and Parachutist Badge.
4.  A review of the applicant's records shows that, on 27 July 2000, he
submitted a request for discharge under the provisions of chapter 10 of
Army Regulation 635-200 (Active Duty Enlisted Administrative Separations)
to the commander of the Special Processing Company (SPC), U.S. Army
Personnel Control Facility (USA PCF), U.S. Army Armor Center and Fort Knox,
Fort Knox, Kentucky.  In his request, the applicant acknowledged that he
was voluntarily requesting discharge in lieu of trial by court-martial
because of charges that had been preferred against him under the UCMJ,
which authorized the imposition of a bad conduct or dishonorable discharge.
 The charges against the applicant were preferred under Article 86, UCMJ,
for his being absent without leave, from on or about
6 June 2000, to on or about 21 July 2000.

5.  The applicant’s records show that, on 27 July 2000, he consulted with
counsel.  His counsel also certified that he had advised the applicant of
the basis for the contemplated trial by court-martial under circumstances
which could lead to a bad conduct or dishonorable discharge, of the effects
of the request for discharge, and the rights available to the applicant.

6.  On 7 November 2001, the colonel in command of Headquarters, U.S. Army
Garrison, U.S. Army Armor Center and Fort Knox, Fort Knox, Kentucky,
approved the applicant’s request for discharge under the provisions of
chapter 10 of Army Regulation 635-200 and directed that the applicant be
reduced to the rank of private/pay grade E-1 and issued a discharge under
other than honorable conditions.

7.  The DD Form 214 issued to the applicant upon his discharge from the
U.S. Army shows the separation authority was chapter 10, Army Regulation
635-200, and the reason for his separation was in lieu of trial by court-
martial.  Based on the authority and reason for his separation, the
applicant was assigned a separation program designator (SPD) code of KFS
and a Reentry code of RE-4.

8.  The applicant provides copies of a Military Police Report and his
discharge document in support of his application.  These documents
substantiate the reasons and type of discharge the applicant received.  The
applicant also provides a copy of a letter from the Commander, U.S. Total
Army Personnel Command, in response to his request to change his RE code.
This letter shows the applicant's RE code of RE-4 was verified, deemed
appropriate, and determined to be administratively correct.




9.  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 identifies
the SPD code of KFS as the appropriate code to assign Regular Army enlisted
Soldiers who are voluntarily discharged under the provisions of chapter 10,
Army Regulation
635-200, based upon a request for discharge in lieu of trial by court-
martial.

10.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment
Program), in effect at the time of the applicant's discharge, provides, in
pertinent part, 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.  RE-4 applies to persons who have a non-waivable
disqualification and may not request reentry.  The Army regulation further
provides that, prior service Army personnel will be advised that RE codes
may be changed only if they are determined to be administratively
incorrect.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request for change to the RE-4 code that he received in
conjunction with his discharge from the U.S. Army and the supporting
evidence he provided were carefully considered.

2.  The evidence of record confirms the applicant was voluntarily
discharged in lieu of trial by court-martial.  Further, the applicant’s
separation processing was accomplished in accordance with the applicable
regulation.  All requirements of law and regulation were met and the rights
of the applicant were fully protected throughout the separation process.
As a result, his separation was proper and equitable, and the RE-4 code he
received was appropriately assigned based on the authority and reason for
his separation.  As a result, the RE-4 code assigned at the time of the
applicant's discharge was, and remains, valid.

3.  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.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 20 November 2001; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
19 November 2004.  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

__JTM __  __JBG_ _  __ JRM__  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.




                                  ____JOHN T. MEIXELL______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050001859                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051020                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |20011120                                |
|DISCHARGE AUTHORITY     |AR 635-200, Chapter 10                  |
|DISCHARGE REASON        |In Lieu of Trial by Court-Martial       |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |100.0300.0000                           |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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