RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  31 January 2008
	DOCKET NUMBER:  AR20070013396 


	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

Mr. Michael L. Engle

Analyst

The following members, a quorum, were present:


Mr. John Infante

Chairperson

Mr. Eric N. Andersen

Member

Mr. David K. Haasenritter

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 his Reentry (RE) Code 4 be changed so that he may enlist in the United States Navy. 

2.  The applicant states, in effect, that he realizes he made a mistake by leaving his duty station without permission; that this was the reason for his discharge; and that was why he received an RE Code 4.  He further states that he went AWOL (absent without leave) because his father was seriously injured and could not take care of himself or his disabled wife [applicant’s mother].  Now, his father is well, and is encouraging him to return to the military and to make something of his life.  Since his discharge, the applicant has worked a few jobs to support himself, but they did not provide enough money to make a living.  He also joined the organization, Young Men Making a Difference, a community group that provides food and clothing and does renovations for residents.  The applicant also states that he knows he cannot go back and change the decisions he made in the past, but he can make up for them in his future.  He believes by entering the United States Navy, he can serve his country again

3.  The applicant provides three statements of support from a long time friend, an employer, and the police department.

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.   On 10 January 2001, the applicant enlisted in the Regular Army for 3 years.  He completed his initial training and was awarded military occupational specialty (MOS) 92G (Food Service Specialist).


3.  On 7 December 2001, the applicant departed AWOL and remained absent until his return to military control on 5 March 2003 (453 days). 

4.  On 14 May 2003, the applicant was discharged in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  Accordingly, he was given a Separation Program Designator (SPD) Code of KFS and an RE Code of 4.  His character of service was under other than honorable conditions.  

5.  Army Regulation 601-210 prescribes eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment and includes a list of armed forces RE Codes including RA RE codes.  RE 4 applies to persons separated from their last period of service with a non-waivable disqualification.  That regulation further provides that RE codes may only be changed if they are determined to be administratively incorrect.

6.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities, reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  The SPD code of KFS was the appropriate code for the applicant based upon the guidance provided in Army Regulation 635-5-1 for Soldiers separating under the provisions of AR 635-200, Chapter 10, in lieu of trial by court-martial.  Additionally, Table 2-3 (SPD/RE Code Cross Reference Table), Army Regulation 635-5 (Separation Documents) establishes RE Code 4 as the proper RE code to assign to Soldiers for this reason.

7.  The three statements of support state that the applicant has always respected his parents and those in authority; has been a good worker; and would be a great asset to the United States Navy.

DISCUSSION AND CONCLUSIONS:

1.  The RE Code 4, establishing his ineligibility for enlistment/reenlistment, was correctly entered on his separation document in accordance with governing regulations.  There is no evidence of error or injustice.

2.  There is no apparent basis for removal or change of the applicant’s disqualification that established the basis for the RE Code 4.  While the applicant’s desire to resume service to his country is noted, there are no provisions authorizing the change of an RE Code for this purpose.


3.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__DKH__  __JI_____  __ENA       DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




__        _John Infante _______
          CHAIRPERSON




INDEX

CASE ID
AR20070013396 
SUFFIX

RECON
 
DATE BOARDED
20080131
TYPE OF DISCHARGE
 
DATE OF DISCHARGE
 
DISCHARGE AUTHORITY
 
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
110
2.

3.

4.

5.

6.