RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        15 May 2007
      DOCKET NUMBER:  AR20060011012


      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. Gerard W. Schwartz            |     |Acting Director      |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Yolanda Maldonado             |     |Chairperson          |
|     |Ms. LaVerne M. Douglas            |     |Member               |
|     |Mr. Gerald J. Purcell             |     |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 (RE) code be changed to a code
that will allow him to reenlist.

2.  The applicant states he was told he could reenlist two years after his
separation date.  He based his decision to request discharge on wrong
information.  He would have never agreed to the discharge if he knew he
would not be able to reenlist.  Reenlisting has always been his goal.

3.  The applicant provides two applications; two copies of his DD Form
      214 (Certificate of Release or Discharge from Active Duty); and a DA
Form       31 (Request and Authority for Leave);

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 18 November 2003.  He did
not complete training.

2.  On 22 April 2004, court-martial charges were preferred against the
applicant charging him with being absent without leave (AWOL) from on or
about 9 March 2004 to on or about 20 April 2004.

3.  On 23 April 2004, after consulting with legal counsel, the applicant
voluntarily requested a discharge under the provisions of Army Regulation
635-200, chapter 10 for the good of the service in lieu of trial by court-
martial.  The applicant acknowledged that by submitting this request for
discharge he was admitting guilt of the charge against him or of (a) lesser
included offense therein contained which also authorized the imposition of
a bad conduct or dishonorable discharge. He indicated that under no
circumstances did he desire further rehabilitation for he had no desire to
perform further military service.  He was advised of the effects of a
discharge under other than honorable conditions and that he might be
deprived of many or all Army and Veterans Administration benefits.  He
elected not to submit a statement in his own behalf.

4.  On 23 April 2004, the applicant went on excess leave pending discharge.

5.  In a 15 June 2004 memorandum, the commander of A Battery, Personnel and
Support Battalion, U. S. Army Field Artillery Center and Fort Sill noted
the applicant had become disillusioned with the military (these sentiments
apparently were obtained from the applicant during an interview).

6.  On 16 July 2004, the appropriate authority approved the request and
directed the applicant receive a discharge under other than honorable
conditions.

7.  On 23 August 2004, the applicant was discharged with a discharge under
other than honorable conditions under the provisions of Army Regulation
  635-200, chapter 10, discharge in lieu of trial by court-martial.  He had
completed 7 months and 24 days of creditable active service and had 42 days
of lost time. He was given a separation code of KFS (voluntary discharge
under the provisions of Army Regulation 635-200, chapter 10) and an RE code
of 4.

8.  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 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, including RA RE codes.

9.  RE code 3 applies to persons not qualified for continued Army service,
but the disqualification is waivable.  RE code 4 applies to persons not
qualified for continued Army service, and the disqualification is not
waivable.

10.  The Separation Program Designator Code (SPD)/Reentry (RE) Code Cross
Reference Table in effect at the time stated that when the separation code
was KFS, then RE code 4 would be given.

11.  Paragraph 4-13a(1) of the version of Army Regulation 601-210 currently
in effect (up through operational change number 2, dated 8 May 2006) states
that a waiver may not be submitted until a 24-month waiting period has
elapsed since the applicant was discharged in lieu of trial by court-
martial.  Paragraph 4-14c states that any applicant who, during his or her
last period of service, was AWOL or had lost time of 30 days or more
regardless of the type of separation or        RE code would be required to
have a waiver for enlistment.

12.  Recruiting personnel have the responsibility for initially determining
whether an individual meets current enlistment criteria.  They are required
to process a request for waiver under the provisions of chapter 4, Army
Regulation 601-210.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was discharged in lieu of trial by court-martial and
therefore was properly given an RE code of 4.  It is noted that when he
requested discharge he admitted he was guilty of the offense charged.  It
is reasonable to presume, then, that had he not requested discharge he
would have been court-martialed.  Had he been convicted and been sentenced
to a bad conduct or dishonorable discharge, he still would have received an
RE code of 4.

2.  However, enlistment criteria change due to the changing manpower
requirements of the Army.  It appears that the enlistment regulation
currently in effect provides for a waiver even for an individual who was
discharged in lieu of trial by court-martial.  The applicant should bring
the regulatory guidance or this Record of Proceedings to the notice of his
recruiting officials.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__ym____  __lmd___  __gjp___  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.




                                  __Yolanda Maldonado___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060011012                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070515                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.       |100.03                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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