IN THE CASE OF:	

		BOARD DATE:	  29 January 2009

		DOCKET NUMBER:  AR20080015677 


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 be changed from RE-4 to RE-1.

2.  The applicant states that he was not given the opportunity to plead his case to tell his side of the story.  He asks for a chance so he can enlist for 2 years for assignment as airborne infantry.

3.  The applicant provides a memorandum for record from his former commander who stated that the applicant's duty performance was exceptional until his depression and unhappiness with his military career resulted in behaviors and actions which led to his discharge.  He also submits a letter from a local mayor, a certificate showing that the applicant was an Eagle Scout dated 28 September 1997, and a certificate for achieving an excellent score on the Army Physical Fitness Test.

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 22 October 2002 and was awarded the military occupational specialty of motor transport operator.  He served in Iraq from 8 April 2003 to 7 April 2004.

3.  Between 1 and 15 June 2004, the applicant was counseled seven times for failure to obey a lawful order and six incidents of failure to be at his assigned place of duty.

4.  On 9 July 2004, court-martial charges were preferred against the applicant for failure to go at the time prescribed to his appointed place of duty (three specifications), being absent without leave (AWOL) (two specifications), disobeying a lawful order (three specifications), and wrongfully using marijuana.

5.  On 9 July 2004, the applicant submitted a request for discharge in lieu of court-martial for the good of the service.  In that request the applicant acknowledged that he consulted with appointed counsel for consultation who fully advised him of the nature of his rights under the Uniform Code of Military Justice, the facts which must be established by competent evidence beyond a reasonable doubt to sustain a finding of guilty, the possible defenses which appear to be available, and the maximum permissible punishment if found guilty.

6.  The applicant's request was approved by the appropriate authority and the applicant was discharged with a characterization of service of under other than honorable conditions.

7.  Army Regulation 635-200 (Personnel Separations) 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 submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

8.  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 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the U.S. 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.

9.  The code RE-4 applies to persons not qualified for continued Army service, and the disqualification is not waivable.  Persons who have been discharged under the provisions of chapter 10 of Army Regulation 635-200 are so disqualified.

10.  On 17 October 2007, the Army Discharge Review Board denied the applicant's request to upgrade his discharge.

DISCUSSION AND CONCLUSIONS:

1.  Contrary to the applicant's contention, he was in fact given the opportunity to plead his case at a trial by court-martial.  The applicant was advised by appointed counsel for consultation of the nature of his rights under the Uniform Code of Military Justice, the facts which must be established by competent evidence beyond a reasonable doubt to sustain a finding of guilty, the possible defenses which appear to be available, and the maximum permissible punishment if found guilty.  After those facts were explained to the applicant, he opted not to plead his case and to request discharge in lieu of court-martial.

2.  The letter from the applicant's former commander, the memorandum from the applicant's mayor, his physical fitness accomplishments, and his standing with the Boy Scouts have been carefully considered.

3.  However, these documents must be weighed against a history of misconduct which resulted in seven counseling statements and court-martial charges for failure to go at the time prescribed to his appointed place of duty (three specifications), being AWOL (two specifications), disobeying a lawful order (three specifications), and wrongfully using marijuana.

4.  In this regard, it is noted that the applicant's Boy Scout standing was established prior to his enlistment, and his physical fitness accomplishments were achieved prior to him being discharged under other than honorable conditions.  As such, it has already been established that these accomplishments are not indicative that the applicant will perform his duties.

5.  This leaves the letter from the mayor, who does not say anything which would warrant changing a properly assigned RE code.

6.  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)                                         AR20080015677





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ABCMR Record of Proceedings (cont)                                         AR20080015677



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