IN THE CASE OF:	  

	BOARD DATE:	  10 July 2008

	DOCKET NUMBER:  AR20080006919 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his Reentry (RE) Code of RE-4 be changed to an RE code that is waivable. 

2.  The applicant states, in effect, that he went absent without leave (AWOL) from basic combat training.  He contends that military recruiters advised him that he should never have been assigned an RE code of RE-4 because he did not have bad conduct, he just went AWOL due to family problems.  He now regrets going AWOL. 

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

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 evidence of record shows that on 18 March 2003, the applicant enlisted in the Army National Guard for a period of 8 years.  

3.  On 5 May 2003, the applicant was ordered to initial active duty training at Fort Benning, Georgia.

4.  On 14 July 2003, the applicant went AWOL.  On 8 October 2003, he was apprehended by civil authorities in Mankato, Minnesota.  On 8 October 2003, he was returned to military authorities at Fort Knox, Kentucky.

5.  On 12 August 2003, the applicant was charged with AWOL from 14 July –
7 October 2003.  Other than the charge sheet, the applicant's discharge packet is not contained in his official record.  It is presumed that the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200 (Enlisted Personnel Separations), chapter 10, since that is the stated reason for his discharge on his DD Form 214.  

6.  On 30 October 2003, the applicant was discharged under the provisions of chapter 10, Army Regulation 635-200, by reason of in lieu of trial by court-martial.  His service was characterized as under other than honorable conditions, and he was credited with 3 months of active Federal service.  He had 83 days of lost time due to AWOL.

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

8.  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 submit a request for a discharge for the good of the service in lieu of trial by court-martial.  The requests may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt.  A discharge under other than honorable conditions is normally considered appropriate.  However, at the time of the applicant’s separation, the regulation provided for the issuance of an undesirable discharge.

9.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies and procedures for enlistment and processing into the RA and the U.S. Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of armed forces RE codes, including RA RE codes.  RE 1 and 
2 permit immediate reenlistment if all other criteria are met.  RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable.  An RE code of 4 indicates separation from the last period of service with a disqualification which cannot be waived and ineligibility for reenlistment.

10.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. Additionally, Table 2-3 (SPD/RE Code Cross Reference Table), AR 635-5-1 (Separation Documents) establishes RE Codes to be assigned for each SPD.  

11.  A separation code of "KFS" applies to persons who are separated under the provisions of chapter 10, Army Regulation 635-200.  The SPD/RE Code Cross Reference Table shows that an RE code of 4 is the applicable RE code assigned for individuals separated by reason of in lieu of trial by court-martial.  An RE code of 4 indicates that the applicant was separated from his last period of service with a disqualification which cannot be waived and he is ineligible for reenlistment.
 
DISCUSSION AND CONCLUSIONS:

1.  Although all the specific facts and circumstances concerning the applicant's discharge were not available for review.  However, the applicant was charged with an offense (AWOL) under the Uniform Code of Military Justice.  One may presume that he voluntarily requested discharge under the provisions of chapter 10, Army Regulation 635-200 after being charged with AWOL and his voluntary request for discharge was accepted in lieu of court-martial.  

2.  With this type of discharge, the applicant would have been charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge.  He would have voluntarily, and in writing, requested separation from the Army in lieu of trial by court-martial.  In doing so, the applicant would have admitted guilt to the stipulated or lesser included offenses under the UCMJ.  In the absence of evidence to the contrary, regularity is presumed in the discharge process.   

3.   The applicant's RE code is based on his reason for discharge and cannot be changed unless the applicant's narrative reason for discharge is changed.  The RE code the applicant was assigned is proper and in conformance with regulatory guidance.  In this case, the applicant has failed to provide sufficient mitigation to warrant any change in his discharge.  Therefore, the Board found no basis upon which to change the applicant's narrative reason for discharge and there is no justification for a change in his RE code.

4.  The applicant contends that military recruiters advised him that he should never have been assigned an RE code of RE-4 because he did not have bad conduct and he just went AWOL.  This information is erroneous.  An unauthorized absence of 183 days is considered serious misconduct, chargeable under the Uniform Code of Military Justice with the possible sentencing of confinement at hard labor.  The applicant avoided having his case tried under the military legal system, and voluntarily requested discharge in lieu of trial by court-martial.  Because the Army accepted his voluntarily request for discharge rather than spend Army time and resources to court-martial him does not mean that he did not commit misconduct.  

5.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   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.




      ___        XXX                ___
                CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



ABCMR Record of Proceedings (cont)                                         AR20080006919





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ABCMR Record of Proceedings (cont)                                         AR20080006919



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