RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  4 October 2007
	DOCKET NUMBER:  AR20070005238 


	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:


Ms. Susan A. Powers

Chairperson

Mr. Edward E. Montgomery

Member

Mr. Qawiy A. Sabree

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 item 26 (Separation Code), of his DD Form 214 (Certificate of Release or Discharge from Active Duty), be changed to show a more favorable SPD (Separation Program Designator), and that his Reentry (RE) Code of "4," in item 27 (Reentry Code), of his DD Form 214, be changed to a more favorable code. 

2.  The applicant states, in effect, that he sent in documents for review of his discharge and it was upgraded from an under other than honorable conditions (UOTHC) to a general discharge, under honorable conditions.  He voluntarily asked for a chapter 10 discharge due to his girlfriend who was pregnant at the time was getting evicted.  He went through the chain of command to ask for assistance but was told there was nothing they could do.  He took it upon himself to go help her.  He went AWOL (absent without leave) for 86 days.  

3.  He turned himself in after he got her situated and asked for a discharge which turned out to be the biggest mistake of his life.  He found out the child was not his and he has regretted getting out of the Army.  His discharge was changed to under honorable conditions but his RE Code still remains as RE "4."  He has gone to several recruiters and asked if he could reenlist and was told nothing could be done with an RE Code of "4."  He is willing to serve in Iraq and do whatever it takes to start over.  

4.  He has matured and is in great shape and has never been convicted of a crime.  He is requesting that his RE Code be changed in order for him to reenlist so he can finish what he started, a career with the Army.  He promises that he will not disappoint the Army in any way but will serve with honor and dedication. The only thing that was changed the first time he requested a review of his records was the character of service.  His separation code remains "KFS," and his RE Code remains RE "4."  He concludes by stating that he hopes to serve again.

5.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) in support of his request. 

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's record shows he enlisted in the Regular Army on 7 November 2000, in pay grade E-3, in military occupational specialty (MOS), 11B, Infantryman, with prior Army National Guard Service.

3.  Item 21 (Time Lost), of his DA Form 2-1 (Personnel Qualification Record – Part II), shows that he was AWOL from 2 February 2001 through 30 April 2001.  

4.  Charges were preferred against the applicant on 10 May 2001, for being AWOL from 2 February 2001 to 30 April 2001.  He surrendered to military authorities on 30 April 2001 at Fort Hamilton, New York, and was assigned to the Special Processing Company, Fort Knox, Kentucky on 6 May 2001.

5.  On 10 May 2001, 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.  

6.  The applicant stated that he understood that if his request were accepted, he could be discharged under other than honorable and furnished an under than honorable discharge certificate.  He stated he had been advised and understood the possible effects of an other than honorable 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.  

7.  He stated he had been 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 the charges resulted in an acquittal or a sentence which did not include a punitive discharge.  

8.  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.  

9.  On 15 January 2002, the separation authority approved the applicant's request for discharge and directed that he be discharged under other than honorable conditions.  

10.  The applicant was discharged on 31 January 2002, in pay grade of E-1. He had a total of 1 year, 3 months, and 6 days of creditable service and had 87 days of lost time due to being AWOL.  

11.  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."

12.  On 4 October 2005, the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his UOTHC (under other than honorable conditions) discharge.  The ADRB determined that the characterization of service was too harsh based on the circumstances surrounding the AWOL and voted to change the characterization to general, under honorable conditions, but voted not to change the narrative reason for discharge.  This action entailed a restoration of rank and pay grade to PFC/E-3.  This action did not entail a change of the RE Code.  He was informed that a new separation document would be prepared.



13.  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.

14.  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.

15.  The SPD/RE Code Cross Reference Table, dated March 2001, 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."

16.  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 of "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 31 January 2002 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 separation code and RE Code issued to him at the time of discharge were improper or inequitable or should be changed now.

5.  The evidence of record shows that the applicant accumulated a total of 87 days of lost time due to being AWOL.  A cumulative absence of this duration is serious.  

6.  The applicant's statement which describes the account of events that occurred prior to and after his AWOL and the discussion of his personal problems which led to his AWOL were reviewed; however, they were not sufficiently mitigating to support a change in his separation code or his RE Code to more favorable codes for reentry.

7.  The evidence shows that the applicant applied to the ADRB for an upgrade of his discharge.  The ADRB determined that his discharge was too harsh based on the circumstances surrounding the AWOL.  The ADRB voted to change the characterization to general, under honorable conditions but voted not to change the narrative reason for discharge.  This action entailed a restoration of rank and pay grade to PFC/E-3.  This action did not entail a change to the RE Code and the separation code.  He was issued a new separation document.

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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_SAP ___  _EM____  __QS____  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.




___  Susan A. Powers________
          CHAIRPERSON




INDEX

CASE ID
AR20070005238
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20071004
TYPE OF DISCHARGE
GD
DATE OF DISCHARGE
20020131
DISCHARGE AUTHORITY
AR 635-200, chap 10
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
100
2.

3.

4.

5.

6.