RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 21 June 2007
DOCKET NUMBER: AR20070000931
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.
Ms. Catherine C. Mitrano
Director
Ms. Wanda L. Waller
Analyst
The following members, a quorum, were present:
Ms. Sherri Ward
Chairperson
Mr. Richard Dunbar
Member
Mr. David Tucker
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 her Reentry (RE) code be changed.
2. The applicant states that she was 17 years old when she enlisted and she believes that she was not ready mentally. She also contends that she had a lot of family issues at the time which caused her to go absent without leave (AWOL). She states that not a day goes by that she does not regret going AWOL.
3. The applicant provides a letter, dated 8 November 2006, she wrote to a Member of Congress, a letter, dated, 6 December 2006, from a Member of Congress to the applicant; discharge orders; and a copy of her DD Form 214 (Certificate of Release or Discharge from Active Duty).
CONSIDERATION OF EVIDENCE:
1. The applicant is requesting correction of an alleged error which occurred on 29 March 2001. The application submitted in this case is dated 21 December 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 applicants failure to timely file.
3. The applicant was born on 25 September 1980. She enlisted on 9 July 1998. She went AWOL on 2 November 1998 and returned to military control on 26 January 2000. She was on excess leave from 8 February 2000 to 29 March 2001 pending discharge. She was discharged under other than honorable conditions under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.
4. Item 25 (Separation Authority) on the applicant's DD Form 214 shows the entry, "AR [Army Regulation] 635-200, CHAP [chapter] 10." Item 26 (Separation Code) on her DD Form 214 shows the entry, "KFS." Item 27 (Reentry Code) on her DD Form 214 shows the entry, "4." Item 28 (Narrative Reason for Separation) on her DD Form 214 shows the entry, "IN LIEU OF TRIAL BY COURT-MARTIAL."
5. Army Regulation 635-5-1 (Separation Program Designator 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 states the reason for discharge based on separation code KFS is In lieu of trial by court-martial and the regulatory authority is Army Regulation 635-200, chapter 10.
6. 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 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.
7. RE-4 applies to persons separated from their last period of service with a non-waivable disqualification.
8. RE-3 applies to persons who are not qualified for continued Army service, but the disqualification is waivable.
9. RE-1 applies to persons completing an initial term of active service who were fully qualified when last separated.
10. The Separation Program Designator Code/Reentry Code Cross Reference Table, dated March 2001, shows that Soldiers given an SPD [Separation Program Designator] of "KFS will be given an RE code of 4.
DISCUSSION AND CONCLUSIONS:
1. The applicants contentions were noted. However, her RE code was administratively correct and in conformance with applicable regulations at the time of her separation.
2. Records show the applicant should have discovered the alleged error now under consideration on 29 March 2001; therefore, the time for the applicant to file a request for correction of any error expired on 28 March 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
SW_____ _RD____ __DT___ 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.
___Sherri Ward________
CHAIRPERSON
INDEX
CASE ID
AR20070000931
SUFFIX
RECON
DATE BOARDED
20070621
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION
DENY
REVIEW AUTHORITY
ISSUES 1.
100.0300
2.
3.
4.
5.
6.
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