IN THE CASE OF:	  

		BOARD DATE:	  18 September 2008

		DOCKET NUMBER:  AR20080008460 


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, in effect, that his Reentry (RE) Code be changed.

2.  The applicant states, in effect, that he was issued an RE Code of RE-4 at the time of his discharge, which is not in error nor unjust.  He also states that he was a member of the 82nd Airborne Division, served in Fallujah (Iraq) for 10 months, and was very proud of his service.  The applicant further states that he realizes he messed up in the past and is now trying to get his life straight.  He requests that he be given one more chance to prove himself to his family and country.  He concludes by stating that he is eager to join the military again and would like to eventually retire from the Army.

3.  The applicant provides a copy of his Record of Trial by Special Court-Marital, dated 21 December 2001.

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 military service records show that he enlisted in the U.S. Army Reserve on 20 August 2002 and entered active duty in the Regular Army for a period of 4 years on 29 October 2002.  Upon completion of basic combat training and advanced individual training, he was awarded military occupational specialty MOS 25U (System Support Specialist).  On 7 December 2003, the applicant was assigned to Headquarters and Headquarters Company, 1st Battalion,
504th Parachute Infantry Regiment, 82nd Airborne Division, Fort Bragg, North Carolina.

3.  The applicant's military service records contain a DD Form 458 (Charge Sheet), dated 7 December 2004, that shows the captain serving as Commander, Headquarters and Headquarters Company, 1st Battalion, 504th Parachute Infantry Regiment, 82nd Airborne Division, Fort Bragg, North Carolina, preferred charges against the applicant for violation of the Uniform Code of Military Justice (UCMJ), Article 112a, with the specification that the applicant did, at Fort Bragg, North Carolina, on or about 20 November 2004, wrongfully possess approximately 56 grams of marijuana with the intent to distribute the said marijuana.

4.  On 21 December 2004, the applicant submitted his voluntary request for discharge under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial.  On 7 January 2005, the major general serving as Commander, 82nd Airborne Division, Fort Bragg, North Carolina, approved the applicant’s request for discharge under the provisions of Army Regulation
635-200, Chapter 10; withdrew and dismissed the charge and specification forming the basis for the applicant’s request for discharge; directed that the applicant be furnished a discharge under other than honorable conditions; and reduced the applicant to the lowest enlisted grade.

5.  The applicant’s military service records contain a DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he entered active duty on
29 October 2002 and was discharged, in the rank of private/pay grade E-1, under other than honorable conditions on 7 February 2005.  At the time, the applicant was credited with completing 2 years, 3 months, and 9 days net active service this period.  The DD Form 214 also shows that the separation authority and reason for his discharge was Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial.  Based on the authority and reason for separation, the applicant was assigned a Separation Program Designator (SPD) Code of “KFS” and an RE Code of “4.”

6.  There is no evidence the applicant submitted a DD Form 293 (Application for Review of Discharge or Separation from the Armed Forces of the United States) to request review of his discharge.

7.  In support of his application, the applicant provides a copy of his Record of Trial by Special Court-Marital, dated 21 December 2001.  This document shows that the applicant was arraigned on the charge of violation of the UCMJ, Article 112a, with the specification that he did, at Fort Bragg, North Carolina, on or about 20 November 2004, wrongfully possess approximately 56 grams of marijuana with the intent to distribute the said marijuana.  The Record of Trial also shows the military judge advised the applicant of the legal consequences of an arraignment, which the applicant stated he understood; the military judge set a trial date of 26 January 2005; and the Article 39(a) session was recessed at
1350 hours, 21 December 2004.  The Record of Trial also shows, “[a] request for discharge in lieu of trial by court-martial was approved by the Convening Authority on 7 January 2005.”

8.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) prescribes policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons.  Chapter 10 (Discharge for the Good of the Service) of this Army regulation provides that a member who has committed an offense or offenses, the punishment for any of which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service.

9.  Army Regulation 635-5-1 (Separation Program Designator 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.  It identifies the SPD code of “KFS” as the appropriate code to assign Regular Army enlisted Soldiers who are voluntarily discharged under the provisions of Chapter 10, Army Regulation 635-200, based upon a request for discharge in lieu of trial by court-martial.

10.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program), in pertinent part, provides 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.  RE Code “4” applies to persons who have a non-waivable disqualification and may not request reentry.  The Army regulation further provides that, prior service Army personnel will be advised that RE codes may be changed only if they are determined to be administratively incorrect.


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his RE Code should be changed so that he may reenter military service and enlist in the U.S. Army.

2.  The applicant’s request for change of the RE Code that he received in conjunction with his discharge from the U.S. Army and the applicant’s record of service during the period of enlistment under review were carefully considered.  

3.  The applicant’s request for discharge under the provisions of chapter 10 of Army Regulation 635-200 for the good of the Service to avoid trial by court-martial was voluntary, administratively correct, and in compliance with applicable regulations.  In addition, the evidence of record shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time, all requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process.

4.  The evidence of record shows that the RE Code of “4” that the applicant received was appropriately assigned based on the authority and reason for his discharge.  Thus, the RE Code “4” assigned at the time of the applicant's discharge was, and remains, valid.  Therefore, there is no basis to change the applicant’s RE Code.

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily 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

____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
      
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)                                         AR20080008460



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ABCMR Record of Proceedings (cont)                                         AR20080008460



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