IN THE CASE OF:	  

		BOARD DATE:	  31 March 2009

		DOCKET NUMBER:  AR20080017309 


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, a change to his reentry eligibility (RE) code from RE-4 to RE-3.

2.  The applicant states, in effect, that he was never in trouble while in the Army and his RE-4 code is unjust because he was given incorrect information from an officer at the reception station regarding his departure from the U.S. Army.  As a result, he returned home.

3.  The applicant provides no documentary evidence in support of 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's record shows that he enlisted in the Regular Army and entered active duty on 14 September 1999.  He was trained in and awarded military occupational specialty 11M (Fighting Vehicle Infantryman).

3.  The applicant's record shows that he was promoted to specialist on 10 October 2004 and that this is the highest rank he attained while serving on active duty.  It also shows that during his active duty tenure, he earned the National Defense Service Medal, Global War on Terrorism Service Medal, Army Service Ribbon, Army Lapel Button, and his unit earned a Presidential Unit Citation.  His record documents no individual acts of valor, significant achievement, or service warranting special recognition.

4.  On 10 July 2002, the applicant departed absent without leave (AWOL) from his organization at Fort Stewart, Georgia.  He remained away for 2 years, 6 months, and 24 days until returning to military control at Fort Stewart, Georgia, on 4 February 2005.

5.  On 9 February 2005, a charge sheet was prepared preferring a court-martial charge against the applicant for violating Article 86 of the Uniform Code of Military Justice (UCMJ) for being AWOL from on or about 10 July 2002 to on or about 4 February 2005.

6.  On 9 February 2005, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment under the UCMJ, the possible effects of an under other than honorable conditions (UOTHC) discharge, and of the procedures and rights available to him.  Subsequent to this counseling, the applicant voluntarily requested discharge in lieu of trial by court-martial conditioned on receiving an honorable or a general, under honorable conditions discharge (GD).  In his request for discharge, the applicant acknowledged that he was guilty of the charge against him or of a lesser included offense contained therein which also authorized the imposition of a bad conduct or dishonorable discharge.  The applicant also elected to submit a statement in his own behalf.  In his statement, he indicated that he had gone AWOL believing that he had been medically discharged from the Army.

7.  On 10 February 2005, the separation authority approved the applicant's request for discharge and directed he receive a GD.  On 25 February 2005, the applicant was discharged accordingly.

8.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to the applicant upon his discharge shows he was separated under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations), in lieu of trial by court-martial.  It also shows that at the time of his discharge, he had completed a total of 2 years, 10 months, and 2 days of creditable active military service and had accrued 2 years, 6 months, and 24 days with 61 days of time lost due to AWOL.  It also confirms that based on the authority and reason for his separation, he was assigned a separation program designator (SPD) code of KFS and an RE code of 4.

9.  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 UOTHC discharge normally is appropriate for a Soldier who is discharged in lieu of trial by court-martial; however, the separation authority may issue a GD or honorable discharge based on the member's overall record of service.

10.  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 United States Army Reserve.  Chapter 3 of that regulation prescribes the basic eligibility for prior service applicants for enlistment.  That chapter includes a list of armed forces RE codes, including RA RE codes.  RE-4 applies to persons who have a nonwaivable disqualification.

11.  Army Regulation 635-5-1 (SPD 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.  It states, in pertinent part, that the SPD code KFS is the appropriate code to assign to Soldiers separated under the provisions of chapter 10, Army Regulation 635-200, in lieu of trial by court-martial.  The SPD/RE Code Cross Reference Table stipulates that an RE-4 code will be assigned to members separated under these provisions with an SPD code of KFS.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his RE code should be changed based on the circumstances of his separation was carefully considered.  However, by regulation, the SPD code of KFS and an RE-4 code will be assigned to members who are discharged for the good of the service in lieu of trial by court-martial.

2.  The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. The record shows that after consulting with defense counsel, the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  In his request for discharge, he admitted guilt to the charge against him or of a lesser included offense that also authorized the imposition of a bad conduct discharge.  All requirements of law and regulation were met and that the rights of the applicant were fully protected throughout the separation process.

3.  Absent any evidence of error or injustice in the discharge process, the assigned RE-4 code was proper and equitable based on the authority and reason for his discharge, and it remains valid.  As a result, there is an insufficient evidentiary basis to support a change to the 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.



      _________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)                                         AR20080017309



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ABCMR Record of Proceedings (cont)                                         AR20080017309



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