RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 26 February 2008
DOCKET NUMBER: AR20070015713
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:
Ms. Linda D. Simmons
Chairperson
Ms. LaVerne M. Douglas
Member
Mr. John G. Heck
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 to RE Code 3 so that he may reenlist in the Army.
2. The applicant states that his discharge was unfair and he wants to serve his country. He further states that he has matured both mentally and physically.
3. The applicant provides no supporting documentation.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. On 15 January 2003, the applicant enlisted in the Regular Army. There is no available evidence showing that he completed his initial training or that he was awarded a military occupational specialty.
3. On 2 June 2003, charges were preferred under the Uniform Code of Military Justice for violation of Article 86, AWOL, during the period from on or about
14 April to 28 May 2003.
4. On 25 June 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 635-200 (Personnel Separations) 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 trail by court-martial. A discharge under other than honorable conditions is normally considered appropriate.
6. The UCMJ provides for a maximum punishment of a punitive discharge and confinement for 1 year for violation of Article 86, AWOL of more than 30 days.
7. 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.
8. Army Regulation 635-5-1 (SPD Codes) provides the specific authorities and 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.
DISCUSSION AND CONCLUSIONS:
1. The RE Code 4, establishing the applicants 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 waiver of the applicants disqualification that established the basis for the RE Code 4. While the applicants desire to continue in the service to his country is commendable, 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
LMD___ __JGH___ __LDS _ _ 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.
___ Linda D. Simmons ___
CHAIRPERSON
INDEX
CASE ID
AR
SUFFIX
RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .
DISCHARGE REASON
BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY
ISSUES 1.
2.
3.
4.
5.
6.
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