RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        8 September 2005
      DOCKET NUMBER:  AR20050002509


      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. Beverly A. Young              |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. William Powers                |     |Chairperson          |
|     |Mr. John Meixell                  |     |Member               |
|     |Mr. Larry Olson                   |     |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 that his Reentry Eligibility (RE) code of RE-4
be changed to a more favorable code so that he can return to the Armed
Forces.

2.  The applicant states that he took this discharge on the advice of his
attorney.  He was led to believe that after six months he would be eligible
to return to the service.  He states that this information was wrong.  It
has been four years and he is still fighting this battle.

3.  The applicant provides letters from a Senator, a list of his awards,
and a copy of his DD Form 214 (Certificate of Release or Discharge from
Active Duty).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 31 May 2001.  The application submitted in this case is dated
17 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 enlisted in the Regular Army on 31 July 1997 for a period
of three years.  He completed basic training and advanced individual
training and was awarded military occupational specialty 14R (Bradley
Linebacker Crewmember).  He was discharged on 2 August 1999 for the purpose
of immediate reenlistment.

4.  The applicant reenlisted on 3 August 1999 for a period of four years.
He was assigned to Germany in June 2000.

5.  The applicant's complete discharge packet is not available.  On 24 May
2001, the separation authority approved the request for discharge in lieu
of court-martial under the provisions of Army Regulation 635-200, chapter
10.  The separation authority directed issuance of an under other than
honorable conditions discharge and the applicant was reduced to the grade
of private E-1.

6.  Department of the Army, Headquarters, U.S. Army Europe, Wiesbaden
Transition Center, Germany, Orders 145-01 dated 25 May 2001 discharged the
applicant from the Regular Army effective 31 May 2001.  At the time of his
discharge, he completed a total of 3 years and 10 months total active
military service.

7.  The applicant's DD Form 214 shows he was issued RE codes of RE-4 and a
Separation Program Designator (SPD) of "KFS" (For the Good of the Service –
In Lieu of Trial by Court-Martial).

8.  On 18 September 2002, the Army Discharge Review Board (ADRB) determined
that the applicant's reason for discharge was proper and equitable and
voted to deny relief.

9.  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,
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 is authorized, a discharge under
other than honorable conditions is normally considered appropriate.

10.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes)
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 separation program designator “KFS”
as shown on the applicant’s DD Form 214 specifies the narrative reason for
discharge as “For the Good of the Service – In Lieu of Trial by Court-
Martial” and that the authority for discharge under this separation program
designator is “AR 635-200, Chapter 10.”
Additionally, SPD/RE Code Cross Reference Table, dated March 2001,
establishes RE Code 4 as the proper reentry code to assign to Soldiers
separated for this reason.

11.  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 and the U.S. 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.
12.  RE code 4 applies to persons not qualified for continued Army service
and the disqualification is not waivable.

13.  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.  The U.S. Court of Appeals, observing
that applicants to the ADRB are by statute allowed 15 years to apply there,
and that this Board's exhaustion requirement (Army Regulation 15-185,
paragraph 2-8), effectively shortens that filing period, has determined
that the 3 year limit on filing to the ABCMR should commence on the date of
final action by the ADRB.  In complying with this decision, the ABCMR has
adopted the broader policy of calculating the 3-year time limit from the
date of exhaustion in any case where a lower level administrative remedy is
utilized.

DISCUSSION AND CONCLUSIONS:

1.  The date of application to the ABCMR is within three years of the
decision of the ADRB; therefore, the applicant has timely filed.

2.  In the absence of evidence to the contrary it is presumed that the
applicant's administrative discharge proceedings under the provisions of
Army Regulation 635-200, chapter 10 were conducted in accordance with law
and regulations applicable at the time.

3.  The applicant's DD Form 214 shows the applicant was discharged from
active duty with a separation code of "KFS" (For the Good of the Service –
In Lieu of Trial by Court-Martial) and was assigned RE-4 in accordance with
the governing regulation in effect at the time.

4.  Although the applicant contends he was led to believe that he would be
allowed to reenter the Armed Forces after 6 months, the RE code of "4"
issued to him is not waivable and does not allow him to continue Army
service.

5.  The applicant has failed to show through the evidence submitted or the
evidence of record that the reentry code issued to him was administratively
incorrect, in error or unjust.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

WP______  JM______  LO______  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.




                                  William Powers________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050002509                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050908                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |100.0300                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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