IN THE CASE OF:	

		BOARD DATE:	  11 December 2008

		DOCKET NUMBER:  AR20080015546 


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 his reentry eligibility (RE) code of RE-4 be changed to a code of RE-2.

2.  The applicant states that his record is in error because his reentry code does not properly reflect, represent or originate from the narrative reason for separation of Secretarial Authority.  He believes his record is unjust because he was separated for the convenience of the Government in accordance with Army Regulation 635-200 (Personnel Separation) Chapter 5, which made him "Fully qualified for enlistment/reenlistment" and requires that he be assigned an RE-2.  

3.  The applicant provides a copy of his separation document (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 personnel record shows he enlisted in the Regular Army on 16 April 1997.  There is no military occupational specialty (MOS) listed on his DD Form 214.

3.  On 10 December 1999, the applicant was charged with one specification of being absent without leave (AWOL) for the period 29 October 1999 to  
8 December 1999.

4.  On 16 December 1999, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial.

5.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offense, that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and state law.  He also acknowledged that he understood that he may expect to encounter substantial prejudice in civilian life by reason of an Under Other Than Honorable Conditions Discharge.  He acknowledged he understood there was no automatic upgrading or review by any Government agency of a less than honorable discharge and that he must apply to the Army Discharge Review Board or the Army Board of Correction of Military Records if he desired a review of his discharge.  He acknowledged that he realized the act of consideration by either board did not imply that his discharge would be upgraded.

6.  On 6 April 2000, the applicant's commander forwarded his recommendation for separation to the separation approving authority.  The commander stated that the applicant had become disillusioned with the military and that retention was not in the best interest of the Army.  The applicant's commander recommended that the applicant be issued a discharge Under Other Than Honorable Conditions.




7.  On 3 May 2000, the approval authority approved the applicant's request and directed the applicant be discharged in lieu of trial by court-martial under the provisions of Army Regulation 635-200, Chapter 10, and his service be characterized as Under Other Than Honorable Conditions.

8.  On 24 May 2000, the applicant was discharged from active duty in lieu of trial by court martial, in accordance with Army Regulation 635-200, Chapter 10.  He was assigned a separation program designator code (SPD) code of KFS and an RE code of RE-4.  He had completed 2 years, 11 months and 29 days of active service and he had accrued 39 days of time lost.

9.  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 US Army Reserve.  Chapter 3 of this 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.  This regulation no longer provides for a reentry code of RE-2.

10.  Table 3-1 (U.S. Army reentry eligibility codes) of Army Regulation  
601-210 provides that an RE code of RE-4 applies to persons separated from the last period of service with a non-waivable disqualification.

11.  Army Regulation 635-5-1 (Separation Program Designated Codes), Table
2-3, provides that the SPD code of KFS denotes discharge for the good of the service in lieu of court-martial.

12.  The Army Human Resources Command publishes a cross-reference table of SPD and RE codes.  This cross-reference table shows that an SPD code of KFS is assigned an RE code of RE-4.

13.  The applicant applied to the Army Discharge Review Board (ADRB) on 
23 April 2004.  On 4 February 2005, the ADRB reviewed the applicant's record and determined that his discharge was inequitable and granted relief to upgrade his characterization of service to fully honorable and changed the narrative reason for separation to Secretarial Authority.  However, the ADRB did not change his RE code of RE-4.  His reissued DD Form 214 erroneously shows he entered active duty on 16 April 1977.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his RE code of RE-4 should be changed to RE-2.

2.  Army Regulation 601-210 no longer provides for a RE code of RE-2.
3.  The applicant voluntarily requested to be discharged for the good of the service in lieu of a trial by a court-martial acknowledging he was guilty of the charges against him.  

4.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. 

5.  The applicant’s characterization of service and his narrative reason for separation were changed by the ADRB.  However, the ADRB did not choose to change the applicant's RE code.  The applicant has not provided any reason why this Board should amend the decision made by the ADRB.  Therefore, there is no reason to change his correctly assigned RE code of RE-4.

6.  Evidence shows that the applicant’s records contain an administrative error which does not require action by the Board.  Therefore, administrative correction of the applicant’s records will be accomplished by the Case Management Support Division (CMSD), St. Louis, Missouri, as outlined by the Board in paragraph 2 of the BOARD DETERMINATION/RECOMMENDATION section below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X____  ___X___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.





2.  The Board determined that an administrative error in the records of the individual concerned should be corrected.  Therefore, the Board requests that the CMSD-St. Louis administratively correct the records of the individual concerned by showing the applicant's date of entry on active duty as 16 April 1997.




      _______ _  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)                                         AR20080015546



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ABCMR Record of Proceedings (cont)                                         AR20080015546



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