RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  3 April 2007
	DOCKET NUMBER:  AR20060012284 


	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.


	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, who was discharged under the provisions of Army Regulation 635-200 (Enlisted Personnel), Chapter 10 (Discharge in Lieu of Trial by Court- Martial), requests that his reentry (RE) code shown in Item 27 (Reentry Code) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed from a “4.” 

2.  The applicant essentially states that he has an excellent record with regard to his two honorable periods of service.  He also states that he has improved himself since he went absent without leave in 2000.  He further states that he firmly believes that he deserves a second chance to serve his country in the United States Army.  He concluded by stating that his discharge was upgraded, but that he was amiss and forgot to request that his RE code be upgraded as well.

3.  The applicant provides a multitude of documents, which included, in pertinent part, his DD Form 214 that was issued on or about 17 December 2004 after the Army Discharge Review Board upgraded his discharge, in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 11 September 2000, the date of his discharge from the Regular Army.  The application submitted in this case is dated 16 August 2006.

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 enlisted in the Regular Army on 23 March 2004.  Although the facts and circumstances pertaining to the applicant’s discharge, i.e., his separation packet, are not contained in the available records, his military records do contain a properly constituted DD Form 214.  This DD Form 214 shows that the applicant was discharged under the provisions of Army Regulation 635-200, Chapter 10.  He was issued a discharge under other than honorable conditions that was upgraded by the Army Discharge Review Board to a general discharge on 17 December 2004.

4.  Item 28 (Narrative Reason for Separation) of the applicant’s DD Form 214 has an entry of “In Lieu of Trial by Court-Martial”.  His DD Form 214 also shows that he was assigned a Separation Program Designator (SPD) code of “KFS,” and an RE code of “4.”

5.  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 at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

6.  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 and the United States 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 codes 1 and 2 permit immediate reenlistment if all other criteria are met.  An RE code of 3 applies to persons not qualified for continued Army service, but the disqualification is waivable.  An RE code of 4 indicates separation from the last period of service with a disqualification which cannot be waived and ineligibility for reenlistment.

7.  Army Regulation 635-5-1 (Separation Program Designator 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. Additionally, Table 2-3 (SPD/RE Code Cross Reference Table), AR 635-5-1 (Separation Documents) establishes RE Codes to be assigned for each SPD.  

8.  An SPD code of "KFS" applies to persons who are discharge in lieu of trial by court-martial under the provisions of Chapter 10, Army Regulation 635-200.  The SPD/RE Code Cross Reference Table shows that an RE code of 4 is the applicable RE code assigned for individuals separated in lieu of trial by court-martial.  An RE code of 4 indicates that the applicant was separated from his last period of service with a disqualification which cannot be waived and is ineligible for reenlistment.


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his RE code shown in Item 27 of his DD Form 214 should be changed from a “4” to a “3.” 

2.  It is clear that the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  It is also clear that he voluntarily requested discharge from the Army in lieu of trial by court-martial.  The applicant did not provide any evidence which shows that any requirements of law and regulation were not met, or that his rights were not fully protected throughout the separation process.

3.  The applicant's RE code is based on his reason for discharge and cannot be changed unless the applicant's narrative reason for discharge is changed.  His narrative reason for discharge was based on his voluntary request for discharge in lieu of trial by court-martial, and the Board could find no basis upon which to change this reason.  

4.  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 did not submit any evidence that would satisfy this requirement.  In view of the foregoing, there is no basis for granting relief to the applicant in this case.

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 11 September 2000; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
10 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

___JI  ___  __SP ___  ___QS __  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 Infante________
          CHAIRPERSON




INDEX

CASE ID
AR20060012284
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070403
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
AR 15-185
ISSUES         1.
100.0300.0000
2.

3.

4.

5.

6.