IN THE CASE OF:	

		BOARD DATE:	 9 April 2009 

		DOCKET NUMBER:  AR20080019107 


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 of RE-4 be changed to one which will allow enlistment.  

2.  The applicant states that he would like his RE code changed so that he can enlist in the U. S. Army and serve his country. 

3.  The applicant provides a self-authored personal statement and two witness statements 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.  Military personnel records show the applicant enlisted in the Regular Army on 17 September 1998 at age 19 for a period of 3 years.  He completed basic and advanced military training and was awarded military occupational specialty (MOS) 11B (Infantryman).

3.  On an unknown date, court-martial charges were preferred against the applicant for four specifications of Article 86 of the Uniform Code of Military Justice (UCMJ), absence without leave and failure to report; two specifications of Article 112a, wrongful use of valium and ecstasy; one specification of Article 91, being disrespectful towards a noncommissioned officer; and two specifications of Article 135, breaking restrictions and possession of alcohol while under the legal drinking age.  The applicant was placed in pretrial confinement on 21 June 2000.

4.  On 1 July 2000, the applicant voluntarily requested discharge in lieu of trial by court-martial.  He acknowledged that he was making the request of his own free will, he understood the elements of the offenses he was charged with, and that he was guilty of the offense with which he was charged.  He further acknowledged that he was afforded the opportunity to speak with counsel prior to making this request.  In his request, the applicant acknowledged that he was advised he may be furnished an Under Other Than Honorable Conditions Discharge Certificate, that he would be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Department of Veterans Affairs, and that he may expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.  

5.  On 18 July 2000, the Staff Judge Advocate for the 101st Airborne Division (Air Assault) stated by endorsement to the Commanding General that the applicant's company commander, battalion commander, and brigade commander recommended that the applicant be discharged in lieu of trail by court-martial and that he receive an under other than honorable discharge.  

6.  On an unknown date, the appropriate authority approved the applicant's request for discharge in lieu of trial by court-martial and further directed that the applicant's discharge characterization of service be under other than honorable conditions.

7.  On 31 August 2000, the applicant was discharged under the provisions of Chapter 10 of Army Regulation 635-200, in lieu of trial by court martial.  The applicant was assigned a separation program designator (SPD) code of "KFS" and assigned a RE code of RE-4.  He had completed 1 year, 7 months, and 5 days of active service that was characterized as under other than honorable conditions.  He had 102 days of time lost.

8.  In the applicant's self-authored statement he states, in effect, that he was young and immature like many young men and women who chose to enlist.  He further states that he associated with the wrong people during his enlistment which then led to his misconduct.  He sincerely apologizes for his wrong doing.   He states he has now matured and would like a second chance to demonstrate his maturity by serving his country.  

9.  The applicant provided two letters of reference from two supervisors from separate businesses.  The first letter dated 19 November 2008 stated, in effect, that the applicant has shown leadership abilities, maturity, self-esteem, and that he is prepared to accept new responsibilities.  The second letter written by a supervisor employed by a physical security firm stated, in effect, that the applicant is an excellent employee and role model for his peers.  He stated that the applicant has shown dedication and a strong work ethic and he is willing to go the extra mile.    

10.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the administrative 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.  The request must include the Soldier's acknowledgement that the Soldier understands the elements of the offense(s) charged and that the Soldier is guilty of the charge(s) or of a lesser included offense therein contained which also authorized the imposition of a punitive discharge.  A discharge under other than honorable conditions is normally considered appropriate.  

11.  Army Regulation 635-5-1 (Separation Program Designator Codes), then in effect, prescribed 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 showed that the SPD code “KFS” as shown on the applicant’s DD Form 214 specified the narrative reason for discharge as “In Lieu of Trial by Court-Martial."

12.  The Separation Program Designator Code/Reentry Code Cross-Reference Table, dated October 1999, shows that the appropriate RE code for the SPD code of "KFS" is RE-4.

13.  Paragraph 3-22 (U.S. Army Reentry Eligibility Codes) of Army Regulation 601-210, then in effect, provided that RE-4 applied to a person separated from their last period of service with a non-waivable disqualification. 

14.  Paragraph 3-27 (Correction of Army RE Codes) of Army Regulation
601-210, then in effect, provided that RE codes may be changed only if they are determined to be administratively incorrect.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that due to his youth and immaturity he made poor decisions during his enlistment in the U. S. Army and he now regrets and apologizes for his misconduct.  The applicant's contention that his youth and immaturity contributed to his misconduct is not accepted.  The applicant was 19 years old at the time of enlistment.  Therefore, he was not any less mature than other Soldiers of the same age who successfully completed their military service obligation.

2.  He contends that his RE code should be changed to so he can re-enter the 
U. S. Army.  However, in his request for discharge, he acknowledged that he was advised he may be furnished an Under Other Than Honorable Conditions Discharge Certificate and the effects of such a discharge.

3.  The reason for the applicant's discharge was based on his request and approval for discharge in lieu of trial by court-martial.  Therefore, his SPD code of "KFS" correctly reflects the reason for discharge.

4.  The Cross Reference Table shows that for the SPD code of "KFS" an 
RE code of RE-4 is to be assigned.  Therefore, the applicant's RE code of RE-4 is administratively correct.

5.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  

6.  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 that 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)                                         AR20080019107



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ABCMR Record of Proceedings (cont)                                         AR20080019107



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