IN THE CASE OF:	  

		BOARD DATE:	      11 JUNE 2009

		DOCKET NUMBER:  AR20080014292 


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, correction to Items 4a (Grade, Date or Rank), 4b (Pay Grade), 12f (Foreign Service), 24 (Character of Service), and 27 (Reentry (RE) Code) on his DD Form 214 (Certificate of Release or Discharge from Active Duty).  

2.  The applicant states, in effect, that his RE Code was supposed to be corrected and a DD Form 215 (Correction to DD Form 214) would be issued to provide missing information.  He also states, in effect, he never received a DD Form 215 reflecting all of the corrections for his temporary DD Form 214 as stated in Item 18 (Remarks).  He has been writing and contacting the Department of Veterans Affairs (VA) and the Army to receive his DD Form 215.  He further states that he completed his first term of service. 

3.  In support of his application, the applicant provides copies of his 1999 Honorable Discharge Certificate and his DD Form 214.  

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 U.S. Army Reserve (USAR) Delayed Entry Program (DEP) on 31 January 1996.  He was subsequently discharged from the DEP on 9 July 1996 and he enlisted in the Regular Army (RA), in pay grade E-1, on 10 July 1996 for a period of 3 years.  He was honorably discharged on 25 January 1999 for the purpose of immediate reenlistment.  He reenlisted in pay grade E-4 on 26 January 1999 for a period of 4 years.  His DD Form 4/1 (Enlistment/Reenlistment Document) shows he reenlisted while serving with Battery A, 6th Battalion, 37th Field Artillery in Korea. He reenlisted for the station of choice option for Fort Sill, Oklahoma.  His records do not show his inclusive dates of service while assigned to Korea.

3.  The applicant was reported absent without leave (AWOL) on 30 December 1999 and was returned to military control on 31 January 2000, a period of 1 month and 1 day.  

4.  On 1 February 2000, a DD Form 458 (Charge Sheet) was prepared by the Commander, A Battery, Personnel Control Facility, Personnel and Support Battalion, U.S. Army Field Artillery Center, Fort Sill.  The applicant was charged with one specification of AWOL from 30 December 1999 to 31 January 2000. 

5.  On 3 February 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 (Personnel Separations - Enlisted Separations), 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 the charged offense, and if he were found guilty of the charge, 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 VA.  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 8 June 2000, the Commander, Personnel and Support Battalion, recommended approval of the applicant’s discharge and the issuance of an under other than honorable conditions discharge.  The commander stated that the applicant was charged with one specification of 31 days of AWOL and surrendered to military authorities.  The applicant had become disillusioned with the military and his retention was not in the best interest of the Army.  

7.  On 21 June 2000, the Acting Chief, Criminal Law Division, found no legal objections to further processing of the commander's recommendations.

8.  On 22 June 2000, 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.  He also directed the applicant be reduced to private (PV1)/E-1. 

9.  The applicant was accordingly discharged on 21 July 2000, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10 by reason of in lieu of trial by court-martial with an under other than honorable conditions discharge.  He was credited with 3 years, 10 months, and 9 days of total active service and lost time from 30 December 1999 through 30 January 2000 due to AWOL.  

10.  Item 4a of the applicant's DD Form 214 shows the rank of PV1 and Item 4b shows his pay grade as E-1.  Item 12h (Effective Date of Pay Grade) shows a date of 22 June 2000 [the date the separation authority approved the applicant's requested separation action].  Item 12f shows zero credit for foreign service.  Item 18 shows he had not completed his first full term of service.  Item 26 (Separation Code) of his DD Form 214 shows "KFS” and Item 27 shows "RE-4."

11.  Item 12a (Date Entered Active Duty This Period) of the applicant's DD Form 214 shows he entered active duty on 11 August 1996.  Item 12c (Net Active Service This Period) shows he completed 3 years, 10 months, and 9 days of service.

12.  On 5 December 2003, the ADRB determined that the applicant was properly and equitably discharged and denied his petition for a change in the character of service and/or reason for his discharge.


13.  On 2 June 2009, a staff member of the Defense Finance and Accounting Service (DFAS), Indianapolis, Indiana, verified that the applicant served in South Korea from 8 February 1998 to 10 February 1999.

14.  Army Regulation 635-200 sets forth the basic authority for 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.  An under other than honorable conditions discharge is normally considered appropriate.  

15.  Army Regulation 635-5 (Separation Documents), dated 15 September 2000, provides instructions for the preparation of the DD Form 214.  It states, in pertinent part, that Items 4a, 4b, and 12h will list the rank, pay grade, and effective date of pay grade for the current pay grade at the time of separation.  Items 12a will show the date entered on active duty.  Item 12c will include the total period of time from the dates entered on and released from active duty for the period covered by the DD Form 214 minus any lost time during this period.  Item 12f will show the period of foreign service completed for the period covered by the DD Form 214.  Item 18 will show the mandatory entry "SOLDIER (HAS) (HAS NOT) COMPLETED FIRST FULL TERM OF SERVICE."  Routinely, a Soldier should not be considered to have completed the first full term of active service if separation occurs before the end of the initial contracted period of service.  However, if a Soldier reenlists before the completion of that period of service, the first term of service is effectively redefined by virtue of the reenlistment contract.  Item 18 also states that when a Soldier is separated with TEMPORARY RECORDS, enter “SEPARATED FROM SERVICE ON TEMPORARY RECORD AND SOLDIER’S AFFIDAVIT.  A DD FORM 215 WILL BE ISSUED TO PROVIDE MISSING INFORMATION OR TO CORRECT ANY INFORMATION.”  This is used for the purpose of not causing a delay in the Soldier's separation.  It advises the Soldier that a DD Form 215 will be issued if missing information becomes available and that no action is required by the Soldier.

16.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the Reserve.  The regulation provides 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.  Chapter 3 of this regulation prescribes basic eligibility for prior service applicants for 
enlistment.  This chapter includes a list of Armed Forces reentry codes, including RA RE Codes.  Chapter 3-10, also provides that RE Codes may be changed only if they are determined to be administratively incorrect.

17.  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.  

18.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPDs 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. 

19.  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.  The applicant contends that a DD Form 215 should have been issued to correct Items 4a, 4b, 12f, 24, and 27 of his DD Form 214.  He also contends that he completed his first term of service.

2.  The evidence of record shows the applicant enlisted in the RA on 10 July 1996 for 3 years.  He reenlisted in the RA for 4 years on 26 January 1999.  During his second enlistment, he was reported AWOL on 30 December 1999 and returned to military control on 31 January 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.   On 22 June 2000, the convening authority approved his request and directed his reduction to pay grade E-1.  He was subsequently discharged in pay grade E-1 on 21 July 2000.

3.  The applicant has not provided clear and convincing evidence that the reduction to the rank/grade of PV1/E-1 was unjust, in whole, or in part, to support his request. 

Therefore, he is not entitled to correction to Items 4a and 4b of his DD Form 214 and issuance of a DD Form 215 to show any rank/grade other than PV1/E-1.  

4.  The evidence also shows the applicant was discharged on 21 July 2000, under the provisions of Army Regulation 635-200, chapter 10.  An RE code of "4" 
was entered to his DD Form 214.  He contends, in effect, his RE-4 code should be changed on his DD Form 214.  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-4 code was in error or unjust.  Therefore, there is no basis for changing his existing RE code.

5.  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.  

6.  The evidence of record further shows the applicant served in Korea from 8 February 1998 to 10 February 1999 for a period of 1 year and 3 days.  Based on the applicant's service in Korea from 2 February 1998 to 10 February 1999, he is entitled to correction to Item 12f of his DD Form 214 to show 1 year and
3 days of foreign service.  

7.  The evidence of record also shows the applicant completed an honorable period of service from 10 July 1996 to 25 January 1999.  Therefore, he is entitled to correction to his DD Form 214, Item 18, to read:  "Completed First Full Term of Service."  

8.  A review of the applicant’s records verifies that he entered active duty on 10 July 1996.  The date in Item 12a shows 11 August 1996.  It appears that during the preparation of the applicant’s DD Form 214 an administrative error occurred.  Therefore, Item 12a of his DD Form 214 should be corrected to show he entered on active duty on 10 July 1996.  Item 12c should also be corrected to show a credit of  3 years, 11 months, and 11 days.

9.  In view of the foregoing, the applicant’s records should be corrected as recommended below.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

_____X___  ___X_____  _X_______  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

   a.  deleting from Item 12a of the applicant's DD Form 214 the entry "1996 08 11" and replacing it with the entry "1996 07 10";
   
   b.  deleting from Item 12c of the applicant's DD Form 214 the entry "0003 10 09" and replacing it with the entry "0003 11 11";
   
   c.  deleting from Item 12f of the applicant's DD Form 214 the entry "0000 00 00" and replacing it with the entry "0001 00 03"; and
   
   d.  deleting from Item 18 of the applicant's DD Form 214 the entry "MEMBER HAS NOT COMPLETED FIRST FULL TERM OF SERVICE" and replacing it with the entry "SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE." 

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to correction to Items 4a and 4b of his DD Form 214 to show any rank/grade other than PV1/E-1 and a change to his existing RE code of 4.



      _________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)                                         AR20080014292



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ABCMR Record of Proceedings (cont)                                         AR20080014292



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