IN THE CASE OF:
BOARD DATE: 13 January 2009
DOCKET NUMBER: AR20080015879
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 so he can reenlist.
2. The applicant states, in effect, that he was told by a Judge Advocate General officer that his expiration term of service was close and that it would be in his best interest to just separate himself from the situation and request a discharge. He claims that he was told he could just get out for a couple of months, that there was no restriction to reenlist, and that his RE code was changed 11 days after his discharge. He goes on to state that his roommate stole his debit card on a closed account, that his roommate tried to transfer funds into the closed account, and that is why he was not aware of the missing debit card. He also indicates that his RE code on his DD Form 214 does not match the code on his Recruiter Eligibility Data Display (REDD) Report.
3. The applicant provides a letter, dated 28 August 2008, from a Member of Congress; a letter, dated 15 August 2008, from the Chief, Congressional and Special Actions Branch, United States Army Recruiting Command, Fort Knox, Kentucky; an REDD Report; and a DD Form 214 (Certificate of Release or Discharge from Active Duty).
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant enlisted in the Regular Army on 19 October 2000 and trained as a personnel service specialist. Charges were preferred against the applicant for attempted larceny, making a false statement, and two specifications of failing to go at the time prescribed to his appointed place of duty. The applicant requested discharge in lieu of trial by court-martial. He was discharged under other than honorable conditions on 18 July 2003 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. He had served a total of 2 years, 10 months, and 26 days of creditable active service.
3. Item 25 (Separation Authority) on the applicant's DD Form 214 shows the entry, "AR [Army Regulation] 635-200, CHAP [chapter] 10." Item 26 (Separation Code) on his DD Form 214 shows the entry, "KFS." Item 27 (Reentry Code) on his DD Form 214 shows the entry, "4." Item 28 (Narrative Reason for Separation) on his DD Form 214 shows the entry, "IN LIEU OF TRIAL BY COURT-MARTIAL."
4. In support of his claim, the applicant provided an REDD Report which shows his reenlistment eligibility is "3."
5. Army Regulation 635-5-1 (Separation Program Designator Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons. The regulation states the reason for discharge based on separation code "KFS" is "in lieu of trial by court-martial" and the regulatory authority is Army Regulation 635-200, chapter 10.
6. 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 processing into the Regular Army 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.
7. RE-4 applies to persons separated from their last period of service with a non-waivable disqualification.
8. RE-3 applies to persons who are not qualified for continued Army service, but the disqualification is waivable.
9. RE-1 applies to persons completing an initial term of active service who were fully qualified when last separated.
10. The Separation Program Designator Code/Reentry Code Cross Reference Table, dated 31 March 2003, shows that Soldiers given a separation program designator of "KFS" will be given an RE code of 4.
DISCUSSION AND CONCLUSIONS:
The applicant's RE code and separation code were administratively correct and in conformance with applicable regulations at the time of his separation.
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.
_________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.
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