IN THE CASE OF:	  

		BOARD DATE:	       26 FEBRUARY 2009

		DOCKET NUMBER:  AR20080017796 


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 at least RE-3 so he can enlist.

2.  The applicant states, in effect, that he was discharged for falsifying an official document (filling out Basic Allowance for Housing (BAH) paperwork as him being married).  He contends that he was divorced in June 1999 when he arrived at his military police company at Fort Leonard Wood and that he submitted his divorce decree for stoppage of his BAH.  However, he claims he was informed by the operations noncommissioned officer in charge and the finance officer that he was entitled to full BAH because he owned a house in Texas and he paid child support.  Three years later, upon transferring to Korea he discovered his paperwork listed him as married and he immediately went to talk to the administration noncommissioned officer in charge.  He was informed that apparently his paperwork submitted at Fort Leonard Wood was not properly processed and that was the reason he received full BAH for over three years.  He was then referred to the finance officer in charge.  The finance officer asked him for his divorce decree and he informed the finance officer that his divorce decree was in his household baggage which should be in country shortly.  The finance officer told him to fill out the BAH paperwork as if he was still presently married and when he received his divorce decree to turn it in as soon as possible.  That is what he did.  He also states that he informed his first sergeant, commanding officer, and the local Army Criminal Investigation Command (CID) of his situation. He goes on to state that when his household goods arrived he submitted his divorce decree and he was informed that things would work themselves out.  However, CID opened an investigation which led to court-martial charges.         
3.  The applicant states that he went before his battalion commander along with his entire chain of command and explained what had happened.  The Major General demoted him to E-1 for falsifying an official document and was going to give him a discharge under other than honorable conditions.  He indicates that his entire chain of command was furious and argued on his behalf and he received an honorable discharge for their actions.
 
4.  The applicant states that during the investigation he was never removed from his duties as a desk sergeant, that he received numerous commendations from his chain of command, that he was able to reenlist, and that he was six years away from retirement.  Since his discharge, he has received “California P.O.S.T. (Police School of Standards) (California Peace Officers Academy),” he currently works as a bounty hunter, he serves on the Amador County Grand Jury, he works as a mediator for teens, and he has also worked as a bodyguard for various celebrities.  He further states that he knows that filling out the BAH paperwork as him being married was wrong but he truly was trying to fix the problem and not trying to commit fraud. 

5.  The applicant provides seven character reference letters 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 enlisted in the Regular Army on 28 June 1989.  He trained as a military police.

3.  The facts and circumstances surrounding the applicant’s discharge are not contained in the available records.  However, his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that he was honorably discharged on 14 May 2003 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 13 years, 10 months, and 17 days of creditable active service.

4.  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."

5.  In support of his claim, the applicant provided seven character reference letters from coworkers, friends, and employers.  They attest that the applicant’s integrity, loyalty, and honesty are beyond reproach, that he is a Soldier who always lived up to the seven Army values, that he is a true professional and sterling performer, that he is a role model, that he is reliable and dependable, that he is a hard worker, and that he was a highly skilled Soldier.   

6.  Army Regulation 635-5-1 (Separation Program Designator (SPD) 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.  

7.  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.

   a.  RE-4 applies to persons separated from their last period of service with a non-waivable disqualification.

   b.  RE-3 applies to persons who are not qualified for continued Army service, but the disqualification is waivable.

   c.  RE-1 applies to persons completing an initial term of active service who were fully qualified when last separated.

8.  The SPD/RE Code Cross Reference Table, dated 31 March 2003, shows that Soldiers given an SPD of "KFS" will be given an RE code of 4.

DISCUSSION AND CONCLUSIONS:

1.  The character reference letters submitted on behalf of the applicant fail to show that his RE code was either inequitable or unjust and should be changed.

2.  Even though the facts and circumstances surrounding the applicant’s discharge process are not available the DD Form 214 that he was issued upon discharge shows he was separated under the provisions of chapter 10 of Army Regulation 635-200, in lieu of trial by court-martial.  

3.  In the absence of evidence to the contrary, it must be presumed that the applicant’s RE code was 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.

ABCMR Record of Proceedings (cont)                                         AR20080017796



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ABCMR Record of Proceedings (cont)                                         AR20080017796



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