IN THE CASE OF:	  

		BOARD DATE:	        11 SEPTEMBER 2008

		DOCKET NUMBER:  AR20080010102 


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, Item 27 [Reentry Code (RE Code)] on his DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed from "RE-4" to a more favorable RE code. 

2.  The applicant states that he was young at the time and made a mistake.  He further adds that he was granted an upgrade of his discharge and now wishes to have his RE code upgraded as well so he may reenter the Army and serve his country.   He concludes that he takes pride in this beautiful country and now that he is more mature and a responsible family-man, he wants a second chance to serve his country. 

3.  The applicant provided a copy of his reissued DD Form 214, dated 13 September 2002, and a copy of the Support Division, St. Louis, Missouri, letter, dated 29 July 2005, 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 records show that he was born on 1 December 1982 and enlisted in the Regular Army for a period of 5 years at the age of 19 on 9 April 2001.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 95B (Military Police).  The highest rank/grade he attained during this period of military service was private first class (PFC)/E-3.

3.  The applicant’s awards and decorations include the National Defense Service Medal.  His records do not reveal any special acts or achievements during this period of military service.

4.  The facts and circumstances of the applicant’s discharge are not available for review with this case.  However, the applicant’s DD Form 214 shows he was he was discharged on 13 September 2002, in accordance with chapter 10 of Army Regulation (AR) 635-200 (Personnel Separations), in lieu trial by Court-Martial, with a character of service of under other than honorable conditions.  This form also shows that he completed 1 year, 4 months, and 8 days of creditable military service and had 26 days of lost time due to being absent without leave (AWOL).  Item 27 (Reentry Code) of his DD Form 214 shows the entry "4."

5.  On 24 June 2005, the Army Discharge Review board (ADRB) granted the applicant relief in the form of an upgrade of his characterization of service from “Under Other Than Honorable Conditions” to “”Honorable,” the Separation Authority from “AR 635-200, chapter 10” to “AR 635-200, paragraph 5-3,” and the Narrative Reason for Separation from “In Lieu of Trial by Court-Martial” to “Secretarial Authority.”  However, the ADRB elected not to change the RE code.

6.  AR 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, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.


7.  AR 635-200 states, in pertinent part, 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.  AR 601-210 (Regular Army and Army Reserve Enlistment Program), covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the US Army Reserve.  Table 3-1 included a list of the Regular Army Reenlistment Eligibility Codes (RE codes):

	a.  RE–1, applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army.  They are qualified for enlistment if all other criteria are met.

	b.  RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable.  They are ineligible unless a waiver is granted. 

	c.  RE-4 applies to Soldiers separated from last period of service with a nonwaivable disqualification.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant was 19 years of age at the time of his enlistment and 20 years of age at the time of his offense.  However, there is no evidence that indicates that he was any less mature than other Soldiers of the same age who successfully completed military service.  Additionally, there is no evidence in the available records and the applicant has not provided sufficient evidence showing that his act of indiscipline were the result of his age.

2.  The evidence of record shows the applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of AR 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  It is presumed that the applicant voluntarily requested to be discharged from the Army in lieu of trial by court-martial.  It is also presumed that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  

3.  The evidence of record further confirms that the applicant’s RE code was assigned based on the fact that he was separated under the provisions of chapter 10 of AR 635-200, in lieu of trial by court-martial, due to AWOL.  The RE code associated with this type of discharge is RE-4.  Therefore, the applicant received the appropriate RE code associated with his discharge.
4.  The ADRB considered the applicant's RE code when it directed its upgrade action and determined that they it should not be changed because of the court-martial conviction which led directly to the applicant's discharge.  Although the ADRB directed that the applicant's discharge be upgraded, the underlying reason for his discharge was his AWOL and subsequent voluntary request to evade the court-martial.  Absent the AWOL, there would not have been a need for a court-martial or a fundamental reason for the discharge.    

5.  The Army Board for Correction of Military Records (ABCMR) does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the RE code is in error or unjust.  The applicant did not submit evidence that would satisfy that requirement.  Therefore, the applicant is not entitled to relief. 

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)                                         AR20080010102



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080010102



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1