RECORD OF PROCEEDINGS


	IN THE CASE OF:	


	BOARD DATE:	 21 August 2007 
	DOCKET NUMBER:  AR20070003583 


	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. Joyce A. Wright

Analyst

The following members, a quorum, were present:


Mr. Conrad V. Meyer

Chairperson

Mr. Dale E. DeBruler

Member

Ms. Ernestine Moya

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, in effect, that the Reentry (RE) Code of "4," in item 27 (Reentry Code), of his DD Form 214 (Certificate of Release or Discharge from Active Duty), be elevated.

2.  The applicant states, in effect, that he entered the service as a 19D, Cavalry Scout, with a contract to serve overseas, in November 1998.  However, before he completed his training, he was informed that his recruiter had made a mistake in the paperwork for his clearance which would be remedied well before his graduation on 25 March 1999.  Upon graduation, however, he discovered that his clearance had not gone through for reasons unknown.  He was informed that despite completing his training he was still forbidden to drink, smoke, own adult literature, or to have a personally owned vehicle.  

3.  He was slated to go overseas but was unable due to his clearance problems.  He received instructions from his overseas unit to report for duty but was informed that he was not going anywhere.  

4.  The applicant elaborated on the events that occurred later while his clearance was pending, discussed his personal problems, described an assault that occurred on him (by another Soldier), and other events that led to his absence without leave (AWOL).  He later turned himself in and was informed that he could fight his discharge but his chances were 50/50 on winning.  He was informed that he should opt for the discharge and waive the court-martial and that he could still reenlist later with the National Guard or Army Reserve.  He chose to waive the court-martial and was later informed by a Reserve recruiter that he could not reenlist.

5.  He states that he has now matured and is currently employed.  In summary, he is asking for a second chance to prove his self worth and that his RE Code be changed to RE "3" to enable him to reenlist and serve his country.

6.  The applicant provides a copy of his DD Form 214 in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 11 September 2000, the date of his discharge.  The application submitted in this case is dated 25 February 2007 but was received for processing on 8 March 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's record shows he enlisted in the Regular Army on 12 November 1998.  The applicant successfully completed basic combat training and advanced individual training at Fort Knox, Kentucky.  On completion of his OSUT (one station unit training), he was awarded the military occupational specialty (MOS), 19D, Cavalry Scout.  He was advanced to pay grade E-2 effective 12 May 1999.

4.  Item 21 (Time Lost), of his DA Form 2-1 (Personnel Qualification Record – Part II), shows that he was AWOL from 10 through 11 May 1999 (2 days), from 26 through 31 May 1999 (6 days), and from 3 June through 15 July 1999 (43 days).  

5.  Charges were preferred against the applicant on 22 July 1999, for being AWOL from 3 June to 16 July 1999. 

6.  On 22 July 1999, the applicant voluntarily submitted a request for discharge for the good of the service, in lieu of trial by court-martial.  In his request the applicant stated he understood he could request discharge for the good of the service because charges had been filed against him under the UCMJ, which could authorize the imposition of a bad conduct or dishonorable discharge.  He added that he was making his request of his own free will and had not been subjected to coercion whatsoever by any person.  The applicant stated he had been advised of the implications that were attached to his request and that by submitting his request, he acknowledged that he was guilty of the charge against him or of a lesser or included offense which also authorized the imposition of a bad conduct or a dishonorable discharge.  

7.  The applicant stated that he understood that if his request were accepted, he could be discharged under other than honorable conditions.  He was advised and understood the effects of an under other than honorable conditions discharge and that issuance of such a discharge could deprive him of many or all Army benefits that he might be eligible for, that he might be ineligible for many or all benefits administered by the Veterans Administration [now the Department of Veterans Affairs], and that he might be deprived of his rights and benefits as a
veteran under both Federal and state law.  He also understood that he could expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.  

8.  He was informed that once his request was submitted, it could be withdrawn only with the consent of the commander exercising general court-martial jurisdiction over him, or without that commander's consent in the event that his trial on these charges resulted in acquittal or sentence which did not include a punitive discharge.  

9.  Prior to completing his request for discharge for the good of the service, the applicant was afforded the opportunity to consult with counsel.  He consulted with counsel on the same date and was fully advised of the nature of his rights under the UCMJ.  Although he was furnished legal advice, the legal decision was his own.  The applicant was advised that he could submit a statement in his own behalf, which would accompany his request for discharge.  The applicant opted not to submit a statement in his own behalf.

10.  On 29 May 2000, the separation authority approved the applicant's request for discharge and directed that he be discharged under other than honorable conditions.  

11.  The applicant was discharged on 11 September 2000, in the pay grade of  E-1.  He had a total of 1 year, 8 month, and 9 days of creditable service and had 51 days of lost time due to AWOL.  

12.  Item 26 (Separation Code), of the applicant's DD Form 214, shows the entry "KFS."  Item 27 (Reentry Code), of the applicant’s DD Form 214, shows the entry "4" and the narrative reason for his separation is, "in lieu of trial by court-martial."

13.  There is no evidence that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations. 

14.  Army Regulation 635-200 sets forth the basic authority for 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.  A discharge under other than honorable conditions is normally considered appropriate.

15.  Pertinent Army regulations provide that prior to discharge or release from active duty, individuals will be assigned reentry 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 US Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of Armed Forces reentry codes, including RA RE codes.

16.  RE-4 applies to persons not qualified for continued service by virtue of being separated from the service with non-waivable disqualifications such as persons discharged for the good of the service in lieu of trial by court-martial.

17.  The SPD/RE Code Cross Reference Table, dated October 1999, provides instructions for determining the RE Code for Active Army Soldiers and Reserve Component Soldiers separated for cause.  It also shows the SPD code with a corresponding RE Code and states that more than one RE Code could apply.  The Soldier’s file and other pertinent documents must be reviewed in order to make a final determination.  The SPD code of "KFS" has a corresponding RE code of "4."

18.  Army Regulation 635-5-1, in effect at that time, prescribed the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation code to be used for these stated reasons.  The regulation shows that the separation code "KFS", as shown on the applicant's DD Form 214, is appropriate for discharge when the narrative reason for discharge is "voluntary," in lieu of trial by court-martial.  The authority for discharge under this separation code is Army Regulation 635-200, Chapter 10.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's discharge on 11 September 2000 was accomplished in compliance with applicable regulations.

2.  The evidence shows the applicant was voluntarily discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, in lieu of trial by court-martial.  The separation code of "KFS" and RE Code of "4" were entered in their appropriate spaces on the DD Form 214 and the narrative reason for his discharge was shown to be, "in lieu of trial by court-martial."



3.  The applicant's separation code of "KFS" is consistent with the basis for his separation and the RE Code applied to his DD Form 214 is consistent with the separation code; therefore, the applicant is not entitled to a change of his separation code or his RE Code. 

4.  The applicant has provided no evidence to show that the RE Code issued to him at the time of discharge was improper or inequitable or should be changed now.

5.  The applicant's statement which describe the account of events that occurred during training, regarding his clearance, discussion of his personal problems, an assault that occurred on him (by another Soldier), and which led to his AWOL were reviewed; however, they were not sufficiently mitigating to support a change in his RE Code to a more favorable code for reentry.

6.  The evidence of record shows that the applicant accumulated a total of 51 days of lost time due to AWOL.  A cumulative absence of this duration is serious and there is insufficient evidence to show that an incorrect RE Code was applied to his DD Form 214.  

7.  The applicant's statement, in summary, indicated that he would like another opportunity to serve his country and to prove his self worthiness; however, his RE Code of RE "3" prevents him from reenlisting.

8.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

9.  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

__CM___  ___DD___  __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.




_____Conrad V. Meyer____
          CHAIRPERSON




INDEX

CASE ID
AR20070003583
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070821
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
20000911
DISCHARGE AUTHORITY
AR 635-200, chapt 10
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.