RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        31 July 2007
      DOCKET NUMBER:  AR20070002408


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Jeanette R. McCants           |     |Chairperson          |
|     |Mr. Thomas M. Ray                 |     |Member               |
|     |Mr. Jeffrey C. Redmann            |     |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.

2.  The applicant states that when he was discharged he was rushed through
Fort Knox, KY, signing papers.  He did not know the full extent of what was
happening; it was Christmas.  He would have taken the court-martial [in
order for him to be able] to come back in.

3.  The applicant states he married in December 1999, just prior to
entering the Army.  After training, he was assigned to Fort Stewart, GA,
where his wife accompanied him.  That was her first exposure to being away
from her family and friends.  His wife became depressed and, with his long
duty hours, she returned home.  Not thinking clearly, he went absent
without leave (AWOL) for about 10 days to salvage his marriage.  His wife
agreed to return to Fort Stewart, where he was given an Article 15.  That
added additional financial and psychological problems to his marital
problems.  His wife left again, and he went AWOL again, for about 90 days.
He voluntarily turned himself in.  He realized he made a terrible mistake
and was willing to pay the consequences, but he did not understand that he
would be barred from enlisting again.

4.  The applicant provides one, undated, letter of support.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 20 December 2001.  The application submitted in this case
is dated 1 February 2007.

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 5 January 2000.  He
completed basic training and advanced individual training and was awarded
military occupational specialty 19K (M1 Armor Crewman).

4.  On 15 December 2000, charges were preferred against the applicant
charging him with being AWOL from on or about 2 August to on or about 12
December 2000.

5.  On 15 December 2000, 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.  He acknowledged that he understood the elements of the offense
charged and was guilty of the charge against him or of a lesser included
offense which also authorized the imposition of a bad conduct or
dishonorable discharge.  He also stated 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 submitted no statement in his own
behalf.

6.  On 16 December 2000, the applicant was placed on excess leave.

7.  On 5 December 2001, the appropriate authority approved the applicant’s
request and directed he receive a discharge under other than honorable
conditions.

8.  On 20 December 2001, the applicant was discharged, in pay grade E-1,
under the provisions of Army Regulation 635-200, chapter 10, for the good
of the service with a discharge under other than honorable conditions.  He
had completed 1 year, 7 months, and 27 days of creditable active service
and had 109 days of lost time.  He was given a separation code of “KFS” and
an RE code of 4.

9.  On 12 Mach 2004, the Army Discharge Review Board upgraded the
applicant's discharge to general under honorable conditions with no change
in the reason for separation.

10.  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 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. A discharge under
other than honorable conditions is normally considered appropriate.

11.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes)
states that when the reason for separation is court-martial (desertion) or
court-martial (other), then the SPD is JJC or JJD, respectively.

12.  The SPD/RE Code Cross Reference Table states that when the SPD is KFS,
JJC, or JJD, then an RE code of 4 is assigned.

13.  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.

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

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions that he was rushed through Fort Knox, KY,
signing papers, and that he would have taken the court-martial in order for
him to be able to come back into the Army, have been considered.

2.  However, the applicant admitted guilt to a 109-day period of AWOL.  It
is likely that had he taken the court-martial instead of requesting
administrative discharge in lieu of trial by court-martial he would have
received a punitive discharge, especially in light of the fact he had
indicated that under no circumstances did he desire further rehabilitation
and had no desire to perform further military service.  With a punitive
discharge, he still would have received an RE code of 4.

3.  In view of the fact that the applicant was separated by reason of
discharge in lieu of trial by court-martial, the assigned RE code of 4 was
and still is appropriate.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 20 December 2001; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
19 December 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

__jrm___  __tmr___  __jcr___  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.




                                  __Jeanette R. McCants_
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070002408                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070731                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.       |100.03                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]