IN THE CASE OF:	  

		BOARD DATE:	  15 October 2008

		DOCKET NUMBER:  AR20080011665 


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 from RE-4 to RE-3 to allow him to enlist.

2.  The applicant states, in effect, during the first year of his 3-year enlistment, his daughter became ill and he was needed at home to care for her.  He took leave and did not return within the 30-day period and his status was changed to absent without leave (AWOL).  He also states, in effect, that upon his return he was advised to go to Fort Knox, Kentucky, where he was processed out, and advised that upon his release he would automatically be assigned an RE Code that would allow him to enlist after six months.  Since leaving the Army he has completed several degrees in his field and his impeccable citizen and employment record to date, speaks for itself.  This is his third attempt to rectify this situation and hopes at this point his request will be heard.  His RE Code is a blemish on his career record and makes it very difficult to obtain higher levels of employment.

3.  In support of his application, the applicant provides copies of his Certificate of High School Equivalency; his Belford university transcript; six training and course completion certificates; and four letters of recommendation.  

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 records show he enlisted in the Regular Army, in pay grade E-1, on 30 September 1999, for 3 years.  

3.  The applicant was reported AWOL on 10 April 2000 and returned to military control on 29 April 2000.  He was again reported AWOL on 8 May 2000 and was dropped from the rolls of the Army on 9 May 2000.  He was returned to military control on 18 July 2000.

4.  On 26 July 2000, a Charge Sheet (DA Form 458) was prepared by the Commander, Special Processing Company, US Army Personnel Control Facility, Fort Knox.  The applicant was charged with one specification of AWOL from 8 May to 18 July 2000. 

5.  On 26 July 2000, after consulting with counsel, the applicant voluntarily requested discharge in lieu of trial by court-martial, under the provisions of Army Regulation 635-200, Chapter 10.  In doing so, he acknowledged that he was making the request of his own free will and had not been coerced whatsoever.  He also acknowledged that the offense(s) charged, and if he were found guilty of the charge(s), he could be discharged with a bad conduct or dishonorable discharge.  He stated, in effect, that he did not desire further rehabilitation and had no desire to perform further military service.  He also stated, in effect, that although he had been furnished legal advice, he was making this request of his own decision.  He further acknowledged that he could be discharged under conditions other than honorable and furnished an Under Other Than Honorable Conditions Discharge Certificate, if his discharge was accepted, and as a result of the issuance of such a discharge, he could be deprived of many or all Army benefits, and that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs.  He also acknowledged there was no automatic upgrading or review of a less than honorable discharge by any Government agency, the Army Discharge Review Board (ADRB), or the ABCMR, and if he desired a review of his discharge, he must apply to the ADRB or ABCMR.  He also acknowledged that the act of consideration did not imply his discharge would be upgraded.  He waived his rights and elected not to submit a statement in his own behalf.
6.  On 1 November 2001, the applicant’s commander recommended approval of the applicant’s discharge.  The commander stated that based on the applicant’s previous record, punishment could be expected to have a minimal rehabilitation effect.  He believed a discharge at the time to be in the best interest of all concerned.

7.  On 7 November 2001, the appropriate authority approved the applicant's request for discharge in lieu of trial by court-martial and directed that an Under Other Than Honorable Conditions Discharge Certificate be issued and that the applicant be reduced to pay grade E-1. 

8.  The applicant was discharged on 26 November 2001, in pay grade E-1, under the provisions of Army Regulation 635-200, Chapter 10, In Lieu of Trial by Court-Martial, with his service characterized as under other than honorable conditions.  He was credited with 1 year, 10 months, and 26 days of total active service and lost time from 10-29 April 2000 and from 8 May to 17 July 2000, due to AWOL.  Item 26 (Separation Code), of his DD Form 214 states "KFS” and Item 27 (RE Code) states "RE-4."  

9.  On 5 March 2004, the ADRB determined that the applicant was properly and equitably discharged and denied his petition for a change in the character and/or reason of his discharge.

10.  The applicant submits copies of his post-service training completion certificates and several recommendation letters attesting to his post-service employment.  The letters do not address the issues pertaining to his submitted application.

11.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  Chapter 10 of that regulation provided 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.  An under other than honorable conditions discharge was normally considered appropriate.  

12.  Army Regulation 601-210, in effect at the time, covered eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the Reserve.  The regulation provided that prior to discharge or release from active duty, individuals would be assigned RE Codes, based on their service records or the reason for discharge.  Chapter 3 of that regulation prescribed basic eligibility for prior service applicants for enlistment.  This chapter included a list of Armed Forces reentry codes, including RA RE Codes.  Chapter 3-10, also provided that RE Codes could be changed only if they are determined to be administratively incorrect.  

13.  RE-4 applies to persons separated from the last period of service with a non-waivable disqualification.  Members separated with an RE Code 4 are ineligible for enlistment.  RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable.

14.  Army Regulation 601-201, Chapter 3-10, also provides that RE Codes may be changed only if they are determined to be administratively incorrect.  Applicants who have corrected RE Codes will be processed for a waiver at their request, if otherwise qualified, and a waiver is authorized.  

15.  Army Regulation 635-5-1 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 (SPD) to be used for these stated reasons.  The regulation shows that the SPD of “KFS” as shown on the applicant’s DD Form 214 is appropriate for voluntary discharge when the narrative reason for discharge is “In Lieu of Trial by Court-Martial” and the authority for discharge is Army Regulation 635-200, Chapter 10. 

16.  The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers separated for cause.  It also shows SPD codes with their corresponding RE code.  The Soldier’s file and other pertinent documents must be reviewed in order to make a final determination.  The SPD code of “KFS” has a corresponding RE Code of “4.”

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to a change of his RE Code 4.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request and has not shown error or inequity to justify the relief he now seeks.  

2.  The applicant contends that he went AWOL because his daughter was sick.  The evidence shows he was reported AWOL on 8 May 2000 and returned to military control on 18 July 2000.  After consulting with counsel, he requested discharge in lieu of facing a court-martial.  The applicant waived his opportunity to appear before a court-martial to prove his innocence if he felt he was being wrongfully discharged 
or that he was being treated unfairly.  He also stated, in effect, that he did not desire further rehabilitation, had no desire to perform further military service, and was making the decision of his own free will.  
3.  The evidence also shows the applicant was discharged on 26 November 2001, under the provisions of Army Regulation 635-200, Chapter 10.  An RE Code of "4" was applied to his DD Form 214.  He contends, in effect, his RE Code 4 should be changed because he would like to reenter the Service.  The RE code is consistent with the basis for his separation and in this case there is no basis to correct the existing code.  The applicant has failed to show, through the evidence submitted with his application or the evidence of record, that his discharge which resulted in his receiving an RE Code of RE-4 was in error or unjust.  

4.  The evidence of record also confirms the applicant’s discharge processing was accomplished in accordance with applicable regulations and that the type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.  

5.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20080011665



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ABCMR Record of Proceedings (cont)                                         AR20080011665


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