IN THE CASE OF:	  

		BOARD DATE:	        11 DECEMBER 2008

		DOCKET NUMBER:  AR20080016881 


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 be changed to a more favorable code that will allow him to re-enter the Armed Forces. 

2.  The applicant states, in effect, that he knows he made a mistake by leaving the first time but he did not leave because he had problems being a Soldier or adapting to the military.  He goes on to state that he deployed with his unit to Bosnia and served them well.  He further states that he knows what he did was wrong and asks for another chance to serve his country.  He also states that he is currently attending college and desires to serve as a military police officer. 

3.  The applicant provides no additional documents with his 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 enlisted in the Regular Army in Buffalo, New York on 25 August 1999, for a period of 4 years, training as a petroleum supply specialist, assignment to Fort Stewart, Georgia and a $6,000 cash enlistment bonus.

3.  He completed his training and was transferred to Fort Stewart, Georgia for assignment to Headquarters and Headquarters Company, 3rd Battalion, 15th Infantry Regiment.  He was advanced to the pay grade of E-4 on 1 May 2001.

4.  On 17 July 2001, the applicant went absent without leave (AWOL) and he remained absent in a desertion status until he was apprehended by civil authorities in Munhall, Pennsylvania on 23 January 2005.  He was returned to military control at Fort Stewart, where charges were preferred against him for desertion on 18 March 2005.

5.  On 7 April 2005, after consulting with defense counsel, the applicant submitted a request for discharge for the good of the service, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  In his request he indicated that he understood the charges that had been preferred against him, that he was making the request of his own free will, without coercion from anyone and that he was aware of the implications attached to his request.  He also admitted that he was guilty of the charges against him or of lesser included offenses which authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged that he understood that he could receive a discharge under other than honorable conditions and that he might be deprived of all benefits as a result of such a discharge.  He further declined to submit a statement in his own behalf.

6.  The appropriate authority approved his request on 11 April 2005 and directed that he be discharged under other than honorable conditions. 

7.  Accordingly, he was discharged under other than honorable conditions on 20 April 2005, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 2 years and 1 month of total active service and was issued a separation code of "KFS" and a RE Code of "4."

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the 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 charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against them or of a lesser included offense which authorizes the imposition of a bad conduct or dishonorable discharge and they must indicate that they have been briefed and understand the consequences of such a request as well as the discharge they might receive.  A discharge under other than honorable conditions is normally considered appropriate.  

9.  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 covers eligibility criteria, policies, and procedures for enlistment processing into the Regular Army and the USAR.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of armed forces RE codes.

10.  RE-4 indicates that a person is not qualified for continued Army service by virtue of being separated from the service with a nonwaivable disqualification.  The applicable regulations direct that an RE Code of “4” be issued for an SPD of “KFS,” which indicates separation in lieu of trial by court-martial.

DISCUSSION AND CONCLUSIONS:

1.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his records.  In doing so he admitted guilt to the charges against him.

2.  The type of discharge directed, the reasons therefore, and his RE Code appear to be appropriate considering the available facts of the case.

3.  The applicant was issued an RE Code of “4” based on the narrative reason for his discharge, which was based on his approved request for a discharge in lieu of trial by court-martial.  The applicant has failed to show through the evidence submitted and the evidence of record that his RE Code is incorrect or that there is a sufficient reason to warrant a change of his narrative reason for separation and RE Code.

4.  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.    




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.

ABCMR Record of Proceedings (cont)                                         AR20080016881



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ABCMR Record of Proceedings (cont)                                         AR20080016881



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