IN THE CASE OF:	  

		BOARD DATE:	       16 September 2008

		DOCKET NUMBER:  AR20080010681 


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 reentry (RE) code be changed on his DD Form 214 (Certificate of Release or Discharge from Active Duty) with the period ending 14 November 1997.

2.  The applicant states, in effect, that he was young and immature at the time and would like his RE code "3" changed to reenter the military.  He further states that RE code "3" requires a waiver and to save trouble for him and the recruiter he requests a change. 

3.  The applicant provides no additional documentation in support of this 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 enlisted in the Regular Army on 6 May 1997.  He did not successfully complete basic training

3.  A DD Form 458 (Charge Sheet), dated 15 August 1997, shows charges were preferred against the applicant for being absent without leave (AWOL) for the period 4 July 1997 through 7 August 1997.

4.  After consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations).  The applicant indicated in his request that he understood he could be discharged under other than honorable conditions; that he may be deprived of many or all Army benefits; that he may be ineligible for many or all benefits administered by the Department of Veterans Affairs; and that he may be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he may expect to encounter substantial prejudice in civilian life.  He acknowledged the right to provide statements on his own behalf.

5.  The applicant's statement on his own behalf is not available.

6.  On 14 October 1997, the appropriate authority approved the applicant's request for discharge for the good of the service.  He directed that the applicant be issued an under other than honorable conditions discharge and be reduced to the lowest enlisted grade.  

7.  On 14 November 1997, the applicant was discharged from active duty and was issued an under other than honorable conditions characterization of service based on the provisions of chapter 10 of Army Regulation 635-200.  He had completed 5 months and 5 days of creditable active service with 34 days of lost time.  The applicant's DD Form 214 shows in item 26 (Separation Code) the entry "KFS."  Item 27 (Reentry Code) of this DD Form 214 shows the entry "3."  

8.  Army Regulation 635-5-1 (SPD Codes) at that time provided 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.  The SPD code of 



KFS was the appropriate code for the applicant based on the guidance provided in that regulation for Soldiers separating under the provisions of Chapter 10, Army Regulation 635-200, by reason of In Lieu of Trial by Court-Martial.  Additionally, the SPD/RE Code Cross Reference Table establishes RE code 3 as the proper reentry code to assign to Soldiers with an SPD of KFS.

9.  Army Regulation 601-210 covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the US Army Reserve.  Paragraph 3-21 of the regulation states that RE-3 applies to a Soldier who is not considered fully qualified for reentry or continuous service at time of separation, but the disqualification is waivable. 

10.  Recruiting personnel have the responsibility for initially determining whether an individual meets current enlistment criteria.  They are required to process a request for waiver under the provisions of chapter 4, Army Regulation 601-210.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he needs his RE code changed on his DD Form 214 in order to reenter the military.  However, the ABCMR does not change records solely to allow former Soldiers to reenter the service.  The evidence of record confirms that the applicant’s separation processing was accomplished in accordance with the applicable regulations, to include the RE-3 code assignment.  Lacking independent evidence to the contrary, it is determined that 
all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Therefore, the assigned RE-3 code was appropriate.  

2.  However, this does not mean that the applicant has been completely denied the opportunity to enlist.  Since he is eligible to apply for a waiver, he has the option of visiting his local recruiting station and consulting with recruiting personnel who are required to process waiver request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___xx___  ___xx___  __xx____  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.



      _________xxxx_________
               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)                                         AR20080010681



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ABCMR Record of Proceedings (cont)                                         AR20080010681



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