IN THE CASE OF:	 

		BOARD DATE:	  4 November 2008

		DOCKET NUMBER:  AR20080011222


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 his reentry eligibility (RE) code of RE-4 be updated so he can rejoin the military.

2.  The applicant states that he went absent without leave (AWOL) because his sergeants were making fun of him.  He further states his mindset has turned around and he would like to serve his country again the correct way.

3.  The applicant provides a copy of a Department of Veterans Affairs (VA) data base printout 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 entered active duty in the Regular Army on 7 January 2004.  He successfully completed basic combat training.  However, there is no record of him completing advanced individual training.

3.  On 15 July 2004, court-martial charges were preferred against the applicant for with being AWOL during the periods from 5-14 May 2004 and 21 May-2 July 2004.

4.  On 16 July 2004, 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 was advised he could submit any statements he desired in his own behalf.  However, he indicated that he did not desire to submit any statements.

5.  On 13 September 2004, the applicant's commander recommended approval of the applicant's request for discharge and that he receive a discharge under other than honorable conditions.

6.  On 4 October 2004, the Office of the Staff Judge Advocate at Fort Sill, Oklahoma, reviewed the applicant's request for discharge and found no legal objections to further processing in accordance with the unit commander's recommendations.

7.  On 6 October 2004, the appropriate authority approved the applicant's request for discharge in lieu of trial by court-martial and directed that he be discharged under other than honorable conditions.

8.  On 25 October 2004, 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 7 months and 28 days of active service that was characterized as under other than honorable conditions.  He had 50 days of time lost.

9.  The VA printout submitted by the applicant provides his identification data as held by the VA.  The printout provides no evidence concerning the assignment of his RE code at the time of his separation.

10.  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.

11.  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."

12.  The SPD/RE Code Cross-Reference Table, dated 31 March 2003, shows that the appropriate RE code for the SPD code of "KFS" is RE-4.

13.  Pertinent Army regulations provide 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.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program), then in effect, covered eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the U.S. Army Reserve.  Chapter 3 of that regulation prescribed basic eligibility for prior service applicants for enlistment.  That chapter included a list of Armed Forces RE codes.

14.  Paragraph 3-22 (U.S. Army RE Codes) of Army Regulation 601-210, then in effect, provided that RE-4 applied to a person separated from his or her last period of service with a non-waivable disqualification. 



15.  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 so he can rejoin the military.  He further contends that the reason for his periods of AWOL was because his sergeants were making fun of him.  However, he as submitted no evidence to support this contention.

2.  The reason for the applicant's discharge was based on his request and the 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)                                         AR20080011222



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ABCMR Record of Proceedings (cont)                                         AR20080011222



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