IN THE CASE OF:	

		BOARD DATE:  11 June 2009  

		DOCKET NUMBER:  AR20090000156 


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, reconsideration of his request that his discharge under other than honorable conditions be upgraded.  He also requests that his reentry (RE) code be changed from a "4." 

2.  The applicant states that he served 2 years of honorable duty in the Armed Forces and that it was unjust for him to be discharged under less than honorable conditions for one mistake in his life.  He also contends that he was told on the date of his discharge that he had to wait 2 years before he could reenter the Armed Forces, but is now being told otherwise.

3.  The applicant provides no additional evidence 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 requested reconsideration of his request that his under other than honorable conditions discharge be upgraded.  However, the ABCMR previously considered this issue and denied the applicant's petition to upgrade his discharge on 29 November 2007.  On 28 April 2008, the applicant submitted a request for reconsideration for an upgrade of his discharge.  However, he did not provide any new evidence and/or argument with his request.  Therefore, on 14 August 2008, his request for reconsideration was returned without action.  He was further advised that the ABCMR will not consider any further requests for reconsideration of this matter without new evidence.  As the applicant did not submit any new evidence and/or argument or apply for reconsideration within
1 year of the ABCMR's previous consideration of his discharge upgrade issue in accordance with Army Regulation 15-185, the applicant has been notified by separate correspondence that the ABCMR will not consider any further requests for reconsideration of this matter.  He was also advised that his only remaining option is to seek relief in a court of appropriate jurisdiction.  As a result, this portion of the applicant's request will not be discussed further in these Proceedings.

3.  The applicant's military records show that he enlisted in the Regular Army (RA) on 3 October 1999.  He completed the required basic combat and advanced individual training and was awarded military occupational specialty (MOS) 31B (Military Police).

4.  On 21 August 2003, charges were preferred against the applicant for absenting himself without authority from his organization on or about:

   a.  4 March 2000, and remaining so absent until on or about 6 March 2000;
   
b.  8 March 2000, and remaining so absent until on or about 6 April 2000;

c.  7 April 2000, and remaining so absent until on or about 10 July 2001; and

d.  13 July 2001, and remaining so absent until on or about 1 August 2003.

5.  On 22 August 2003, the applicant voluntarily requested discharge under the provisions of chapter 10 (Discharge in Lieu of Trial by Court-Martial), Army Regulation 635-200 (Personnel Separations - 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.  

6.  On 27 October 2003, the proper 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.

7.  On 15 March 2004, 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 (Certificate of Release or Discharge from Active Duty) has an entry of "In Lieu of Trial by Court-Martial."  This document also shows that he was assigned a Separation Program Designator (SPD) code of "KFS," and an 
RE code of "4."  This document further reveals that the applicant only completed a total of 1 year and 4 days of creditable active duty service and had 1,239 days of lost time due to his absence without leave.

8.  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.

9.  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 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 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. 

10.  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.

11.  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 against SPD "KFS" for individuals separated in lieu of trial by court-martial.

12.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

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

2.  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.

3.  The evidence of record shows that the applicant was charged with the commission of multiple offenses punishable under the UCMJ and that he voluntarily (emphasis added) 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.

4.  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 the applicant's requested relief 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)                                         AR20090000156



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ABCMR Record of Proceedings (cont)                                         AR20090000156



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