RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  29 April 2008 
	DOCKET NUMBER:  AR20080003299 


	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.




Director



Analyst
      The following members, a quorum, were present:




Chairperson



Member



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 of RE-4 be changed.

2.  The applicant states that he wants to enlist in the Army.  He explains that when he was previously on active duty, he got married and his wife was unfaithful to him.  This led to him going absent without leave (AWOL), which led to his discharge and assignment of the RE-4.  He adds the Army needs infantry Soldiers, he wants to serve his country honorably, and he is now married to a wonderful woman and has a 4-year old daughter and wishes to provide a good life for his family.

3.  The applicant provides his separation document (DD Form 214).

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 enlisted in the Regular Army on 5 January 2000 and was awarded the military occupational specialty of fighting vehicle infantryman.

3.  On 1 October 2002, the applicant requested discharge in lieu of court-martial for charges of being AWOL from 23 March 2001 to 31 August 2001, and again from 3 September 2001 to 25 September 2002.

4.  In that request he acknowledged guilt to the charge and stated that “under no circumstances do I desire further rehabilitation, for I have no desire to perform further military service.”  He also stated that his military counsel had “fully advised me of the nature of my rights under the Uniform Code of Military justice.”

5.  His request was approved and he was discharged under other than honorable conditions on 24 October 2002.
6.  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.  A discharge under other than honorable conditions is normally considered appropriate.  

7.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes), then in effect, prescribed the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons.  The regulation showed that the SPD code “KFS” as shown on the applicant’s DD Form 214 specified the narrative reason for discharge as “Discharge in Lieu of Trial by Court-Martial."

8.  The Separation Program Designator Code SPD/Reentry (RE) Code Cross-Reference Table shows that the appropriate RE code for the SPD code of KFS is RE-4.

9.  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 (Regular Army and Army Reserve Enlistment Program), then in effect, covered eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the US Army Reserve.  Chapter 3 of that regulation prescribed basic eligibility for prior service applicants for enlistment.  That chapter included a list of Armed Forces RE codes.

10.  Paragraph 3-22 (U.S. Army Reentry Eligibility (RE) Codes) of Army Regulation 601-210, then in effect, provided that RE-4 applied to a person separated from their last period of service with a non-waivable disqualification. 

11.  Paragraph 3-27 (Correction of Army RE codes) of Army Regulation 601-210 provided that RE codes may be changed only if they are determined to be administratively incorrect.

DISCUSSION AND CONCLUSIONS:

1.  While it is regrettable that the applicant was experiencing marital problems while he was on active duty, the Army provides numerous services for its Soldiers to assist them through such difficulties.  The applicant’s decision to go AWOL rather than take advantage of those services was a decision he made.

2.  Additionally, it was the applicant’s decision to request discharge in lieu of trial by court-martial.  If he had gone to trial by court-martial, he could have presented his marital problems as a matter of mitigation.  However, the applicant stated that he had no desire to perform further military service.

3.  As such, the applicant’s assignment of an RE-4 was appropriate and there is no basis for changing it.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X_____  ___X_____  ___X_____  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.




      _________X_____________
                CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20080003299



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
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