IN THE CASE OF:	 

		BOARD DATE:	      30 December 2008

		DOCKET NUMBER:  AR20080015292 


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 of 4 be upgraded. 

2.  The applicant essentially states that it was never his intention to desert his branch of service.  He also states that he loved serving in the Army, and would be grateful for another opportunity to serve.

3.  The applicant provides no additional evidence 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's military records show that he enlisted in the Regular Army on 14 June 1999.  He completed initial entry training and was awarded military occupational specialty 11B (Infantryman).  After completing airborne training, he was assigned to the 75th Ranger Regiment in October 1999 as a student in the Ranger Indoctrination Program. 

3.  On 3 January 2000, the applicant went absent without leave, and was subsequently dropped from the rolls of the Army and classified a deserter.  He remained in this status until he returned to military control on 11 July 2000  and charges were preferred against him for being AWOL from 3 January to 11 July 2000.

4.  On 26 July 2000, the applicant voluntarily requested discharge under the provisions of Chapter 10 (Discharge in Lieu of Trial by Court-Martial), Army Regulation 635-200 (Active Duty Enlisted Administration Separations) in lieu of trial by court-martial after charges were preferred against him under the Uniform Code of Military Justice (UCMJ) which authorized the imposition of a bad conduct or dishonorable discharge.  

5.  On 4 December 2001, the proper approval authority approved the applicant’s discharge under the provisions of Army Regulation 635-200, Chapter 10, and directed that he receive an Under Other Than Honorable Conditions Discharge Certificate.

6.  On 28 December 2001, the applicant was discharged under the provisions of Army Regulation 635-200, Chapter 10.  He was issued a discharge under other than honorable conditions.  Item 28 (Narrative Reason for Separation) of his 
DD Form 214 has an entry of “In Lieu of Trial by Court-Martial.”  His DD Form 214 (Certificate of Release or Discharge from Active Duty) also shows that he was assigned a Separation Program Designator (SPD) code of “KFS,” and an 
RE code of “4.”

7.  Army Regulation 635-200 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 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.  A discharge under other than honorable conditions is normally considered appropriate.

8.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies and procedures for enlistment and processing into the Regular Army and the United States Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of armed forces RE codes, including Regular Army RE codes.  RE code 1 permits immediate reenlistment if all other criteria are met.  An RE code of 3 applies to persons not qualified for continued Army service, but the disqualification is waivable.  An RE code of 4 indicates separation from the last period of service with a disqualification which cannot be waived and ineligibility for reenlistment.  This regulation further provides that RE codes may only be changed if they are determined to be administratively incorrect. 

10.  Army Regulation 635-5-1 (Separation Program Designator Codes) provides 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. Additionally, Table 2-3 (SPD/RE Code Cross Reference Table), Army Regulation 635-5-1 (Separation Documents) establishes RE Codes to be assigned for each SPD.  

11.  An SPD code of "KFS" applies to persons who are discharged in lieu of trial by court-martial under the provisions of Chapter 10, Army Regulation 635-200.  The SPD/RE Code Cross Reference Table shows that an RE code of 4 is the applicable RE code assigned for individuals separated in lieu of trial by court-martial.

12.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his RE code of 4 should be upgraded. 

2.  The fact that the applicant wishes to again serve in the military is commendable.  However, 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 this requirement.

3.  The evidence of record shows that the applicant was charged with the commission of an offense punishable under the UCMJ, and that he voluntarily (emphasis added) requested discharge from the Army in lieu of trial by court-martial.  The applicant did not provide any evidence which shows that any requirements of law or regulation were not met, or that his rights were not fully protected throughout the separation process.
4.  The applicant's RE code is based on his reason for discharge and cannot be changed unless the applicant's narrative reason for discharge is changed.  His narrative reason for discharge was based on his voluntary request for discharge in lieu of trial by court-martial, and there is insufficient basis upon which to change this reason.  In view of the foregoing, there is no basis for granting relief to the applicant in this case.

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)                                         AR20080015292



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ABCMR Record of Proceedings (cont)                                         AR20080015292



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