IN THE CASE OF:	  

		BOARD DATE: 	        9 June 2009 

		DOCKET NUMBER:  AR20080019457 


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 eligibility (RE) code be upgraded.

2.  The applicant essentially states that he wishes to have his RE code changed so he can request a waiver to reenter the Army.  He also contends that while he was in basic training, his wife started living with another Soldier while she was pregnant with their child.  He went absent without leave (AWOL) after he was unable to resolve the problem over the phone and was denied time off to resolve the problem.  He further claims that he talked to his drill sergeant a week after going AWOL to make plans to return, but was arrested prior to returning and put in jail for bad checks written by his wife.

3.  The applicant provides an undated self-authored statement and his DD Form 214 (Certificate of Release or Discharge from Active Duty) in support of this 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 military records show that he enlisted in the Regular Army on 22 October 2002.  The applicant went AWOL on 2 April 2003 while still in initial entry training.  On 2 May 2003, he was dropped from the rolls of the Army and classified as a deserter.  While in this status, he was apprehended by civil authorities in Phoenix City, Alabama, on 29 August 2003 and charged with nine counts of writing bad checks.  He remained in this status until he was released to military authorities in Phoenix City, Alabama, on 22 October 2003 and subsequently reassigned to the United States Army Personnel Control Facility at Fort Knox, Kentucky.

3.  On 27 October 2003, the applicant voluntarily requested discharge under the provisions of chapter 10 (Discharge in Lieu of Trial by Court-Martial), Army Regulation 635-200 (Enlisted Personnel), in lieu of trial by court-martial after charges were preferred against him under the Uniform Code of Military Justice (UCMJ) which authorized the imposition of a bad conduct or dishonorable discharge.

4.  On 28 October 2003, the proper approval authority approved the applicant’s discharge under the provisions of Army Regulation 635-200, chapter 10, and directed that he receive an Under Other Than Honorable Conditions Discharge Certificate.

5.  On 12 November 2003, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10.  He was issued a discharge under other than honorable conditions.  Item 28 (Narrative Reason for Separation) of his DD Form 214 has an entry of "in lieu of trial by court-martial."  His DD Form 214 also shows that he was assigned a Separation Program Designator (SPD) code of "KFS" and an RE code of "4."

6.  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 discharge under other than honorable conditions is normally considered appropriate.

7.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and 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, including Regular Army RE codes.  RE code 1 permits immediate reenlistment if all other criteria are met.  An RE code of 3 applies to persons not qualified for continued Army service, but the disqualification is waivable.  An RE code of 4 indicates separation from the last period of service with a disqualification which cannot be waived and ineligibility for reenlistment.  This regulation further provides that RE codes may only be changed if they are determined to be administratively incorrect.

8.  Army Regulation 635-5-1 (Separation Program Designator 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.  Additionally, the SPD/RE Code Cross Reference Table establishes RE codes to be assigned for each SPD.

9.  An SPD code of KFS applies to persons who are discharged in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200.  The SPD/RE Code Cross Reference Table shows that an RE code of 4 is the applicable RE code assigned for individuals separated in lieu of trial by court-martial.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his RE code of 4 should be upgraded.

2.  The applicant's contention that he was making plans to return to military control a week after going AWOL, but was arrested prior to returning and put in jail for bad checks written by his wife was considered, but found to lack merit.  The applicant went AWOL on 2 April 2003 and only returned to military control on 22 October 2003 after he was released from civilian confinement after having been apprehended by civil authorities on 29 August 2003 for writing bad checks.  The fact that the applicant had over 4 and a half months to return on his own volition prior to being arrested by civil authorities only proves that he actually had no intention of returning to military control, even though he now contends that he was attempting to do so just days after going AWOL.

3.  The fact that the applicant wishes to again serve in the military is commendable.  However, 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.

4.  The evidence of record shows that the applicant was charged with the commission of an offense punishable under the UCMJ, and that he voluntarily requested discharge from the Army in lieu of trial by court-martial.  The applicant did not provide any evidence which shows that any requirements of law or regulation were not met, or that his rights were not fully protected throughout the separation process.

5.  The applicant's RE code is based on his reason for discharge and cannot be changed unless the applicant's narrative reason for discharge is changed.  His narrative reason for discharge was based on his voluntary request for discharge in lieu of trial by court-martial, and there is insufficient basis upon which to change this reason.  In view of the foregoing, there is no basis for granting relief to the applicant in this case.

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)                                         AR20080019457



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ABCMR Record of Proceedings (cont)                                         AR20080019457



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