RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        27 JULY 2006
      DOCKET NUMBER:  AR20050016059


      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. Gale J. Thomas                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John Meixell                  |     |Chairperson          |
|     |Mr. Jeffrey Redmann               |     |Member               |
|     |Mr. Edward Montgomery             |     |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 records be corrected by changing his
reentry (RE) code from 4 to a 3 or a 2.

2.  The applicant states after doing research he felt that the reentry code
of 4 was too severe.  He was very immature at the time of his being absent
without leave (AWOL) and he has been trying to reenlist.

3.  The applicant provides a copy of his DD Form 214 (Certificate of
Release or Discharge from Active Duty) in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 23 January 2002.  The application submitted in this case is
dated 25 October 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 17 July 2000, for a
period of
4 years.

4.  On 12 March 2001, his commander preferred court-martial charges against
him for being absent without leave from 25 August 2000 to 4 March 2001.

5.  On 12 March 2001, after consulting with legal counsel, the applicant
voluntarily submitted a request for discharge for the good of the service,
under Army Regulation 635-200, Chapter 10, in lieu of trial by court-
martial.  He acknowledged that he understood the effects of receiving an
under other than honorable conditions characterization.  He also
acknowledged that he understood that he may be deprived of many or all Army
benefits and that he may be ineligible for many or all benefits
administered by the Veterans Administration [now known as the Department of
Veterans Affairs], and that he may be deprived of his rights and benefits
as a Veteran under both Federal and State law.
6.  On 11 December 2001, his commander recommended approval of his
discharge request with the issuance of an under other than honorable
conditions discharge.

7.  On 3 January 2002, the appropriate separation authority approved his
discharge request, and directed the issuance of an under other than
honorable conditions discharge.

8.  On 23 January 2002, the applicant was discharged under the provisions
of Army Regulation 635-200, Chapter 10, with an under other than honorable
conditions discharge.  His DD Form 214 indicates he had 11 months and 26
days of active service, and 190 days of lost time.  He was assigned an RE
code of 4, and the separation code of KFS.

9.  Army Regulation 635-200, then in effect, set forth the basic authority
for the separation of enlisted personnel.  Chapter 10 of that regulation
provided, in pertinent part, that a member who had committed an offense or
offenses for which the authorized punishment included a punitive discharge
could at any time after the charges had been preferred; submit a request
for discharge for the good of the service in lieu of trial by court-
martial.  At the time of the applicant’s separation, the regulation
provided for the issuance of an under other than honorable conditions
discharge.

10.  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 United States Army Reserve.
Chapter 3 of that regulation prescribed basic eligibility for prior service
applicants for enlistment.  That chapter includes a list of armed forces RE
codes, including RA RE codes.

11.  RE-4 applies to individuals who were separated from their last period
of service with a non-waivable disqualification.

12.  Army Regulation 601-210, which establishes the policies and provision
for enlistment in the Regular Army and United States Army Reserve, states
that RE codes may be changed only if they are determined to be
administratively incorrect.  Individuals who have correct RE codes may be
processed for a waiver at their request if otherwise qualified and a waiver
is authorized.  No requirement to change a RE code exists to qualify for
enlistment.


13.  Army Regulation 635-5-1 states that SPD codes are three-character
alphabetic combinations, which identify reasons for, and types of
separation from active duty. The primary purpose of SPD codes is to provide
statistical accounting of reasons for separation.  They are intended
exclusively for the internal use of DOD and the military services to assist
in the collection and analysis of separation data.  It notes that “KFS” is
the appropriate SPD code for individuals separated in lieu of trial by
court-martial.

14.  A “cross-reference” table, provided by officials from Separations
Branch at the U.S. Army Human Resources Command-Alexandria, confirms that
“RE-4” is the appropriate RE code for individuals who are separated with an
SPD code of KFS.

DISCUSSION AND CONCLUSIONS:

1.  The evidence confirms that the applicant’s RE code was assigned based
on the fact that he voluntarily separated under the provisions of Army
Regulation 635-200, Chapter 10.  He received the appropriate RE code
associated with his discharge.

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

3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 23 January 2002; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
22 January 2005.  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

__JM ___  ___JR___  ___EM __  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 Meixell_________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050016059                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060727                                |
|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.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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