IN THE CASE OF:	

		BOARD DATE:	 16 September 2008 

		DOCKET NUMBER:  AR20080010093 


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 level 4 discharge be dropped to a level 3 or less discharge.  The applicant's request is determined to be a request for a change of his reentry (RE) code of RE-4 to an RE code of RE-3.

2.  The applicant states he was told that his discharge would still allow him to reenlist in the Army without a bonus or choice of military occupational specialty (MOS).  The applicant states he surrendered to military authorities after dealing with [his fiancee's] forced abortion and stayed out of trouble with the law.  He further states he wants to serve his country.

3.  The applicant provides a  DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) in support of his application.

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 personnel record shows he enlisted in the Regular Army on 18 March 1997 for a period of 3 years.  There is no record of the applicant having completed advanced individual training or that he was awarded an MOS.

3.  After having been advised by his defense counsel, the applicant signed an undated statement that he knowingly, willingly, and voluntarily declared that he was absent without leave (AWOL) from on or about 12 August 1997 to on or about 9 February 1999.  The applicant also stated that he was making this admission for administrative purposes so that he could process out of the Army and he realized that in doing so he may be given an under other than honorable conditions discharge.

4.  On 18 February 1999, court-martial charges were preferred against the applicant for with being AWOL during the period from 12 August 1997 to 
9 February 1999.

5.  On 18 February 1999, the applicant voluntarily requested discharge in lieu of trial by court-martial.  He acknowledged that he was making the request of his own free will, he understood the elements of the offenses he was charged with, and that he was guilty of the offense with which he was charged.  He further acknowledged that he was afforded the opportunity to speak with counsel prior to making this request.  In his request, the applicant acknowledged that he was advised he may be furnished an Under Other Than Honorable Conditions Discharge Certificate, that he would be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration (now known as the Department of Veterans Affairs), and that he may expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.  The applicant submitted a statement in his behalf with his request.

6.  The applicant's commander recommended approval of the applicant's request for discharge and that he receive a discharge under other than honorable conditions.

7.  On 17 July 2000, the appropriate authority approved the applicant's request for discharge in lieu of trial by court-martial, directed that the applicant be reduced to private/pay grade E-1, and that he be discharged under other than honorable conditions.

8.  On 28 September 2000 the applicant was discharged under the provisions of Chapter 10 of Army Regulation 635-200, in lieu of trial by court martial.  The applicant was assigned a separation program designator (SPD) code of "KFS" and assigned an RE code of RE-4.  He had completed 2 years and 5 days of active service that was characterized as under other than honorable conditions.  He had 546 days of time lost.

9.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the administrative 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.  The request must include the Soldier's acknowledgement that the Soldier understands the elements of the offense(s) charged and that the Soldier is guilty of the charge(s) or of a lesser included offense therein contained which also authorized the imposition of a punitive discharge.  A discharge under other than honorable conditions is normally considered appropriate.  

10.  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 “In Lieu of Trial by Court-Martial."

11.  The Separation Program Designator Code (SPD)/Reentry (RE) Code Cross-Reference Table, dated October 1999, shows that the appropriate RE code for the SPD code of "KFS" is RE-4.

12.  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. 

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


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his RE code should be changed to RE-3 so he can re-enter the Army.  He contends that he was told that his discharge would still allow him to reenlist in the Army.  However, in his request for discharge, he acknowledged that he was advised he may be furnished an Under Other Than Honorable Conditions Discharge Certificate and the effects of such a discharge.

2.  The reason for the applicant's discharge was based on his request and approval for discharge in lieu of trial by court-martial.  Therefore, his SPD code of "KFS" correctly reflects the reason for his discharge.

3.  The Cross Reference Table shows that for the SPD "KFS" an RE code of 
RE-4 is to be assigned.  Therefore, the applicant's RE code RE-4 is administratively correct.

4.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  

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 that 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)                                         AR20080010093





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ABCMR Record of Proceedings (cont)                                         AR20080010093



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