IN THE CASE OF:	

		BOARD DATE:	23 June 2009  

		DOCKET NUMBER:  AR20090002927 


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 that his reentry eligibility (RE) code be upgraded from  RE-4 to a more favorable code so he may reenlist.

2.  The applicant states that his original other than honorable conditions characterization of service was upgraded to uncharacterized based on the circumstances of the events.  He adds that by upgrading his discharge, his RE code should also be upgraded which would allow him to once again serve his country. 

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 13 August 2001; a self-authored letter, dated 11 February 2009; three character reference letters, dated on various dates; and a copy of a certificate of training, dated 26 August 2005, in support of his request. 

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 records show he enlisted in the Regular Army for a period of 3 years on 28 February 2000 and subsequently reported to Fort Benning, GA, for completion of basic combat training under the one station unit training (OSUT) program. 

3.  On 17 August 2000, the applicant departed his unit in an absent without leave (AWOL) status and was subsequently dropped from the Army rolls on 16 September 2000.  He surrendered to military authorities at Fort Lewis, WA, on 12 October 2000.  

4.  On 18 October 2000, court-martial charges were preferred against the applicant for one specification of being AWOL during the period on or about 17 August to 12 October 2000.

5.  On 23 October 2000, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations).

6.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offense, that also authorized the imposition of a bad conduct discharge or a discharge under other than honorable conditions.  He further acknowledged he understood that if the discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  His request also stated, "Moreover, I hereby state that under no circumstances do I desire further rehabilitation, for I have no desire to perform further military service."





7.  On 18 July 2001, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200 and directed he receive a discharge under than honorable conditions.  On 13 August 2001, the applicant was accordingly discharged.  The DD Form 214 he was issued shows he was discharged for the good of the service in lieu of a court-martial with an under other than honorable conditions discharge.  This form further confirms he completed 1 year, 3 months, and 19 days of creditable active military service and he had 56 days of lost time.  Item  26 (Separation Code) of this form shows the entry "KFS" and item 27 (Reentry Code) shows an entry of "RE-4." 

8.  On 8 December 2006, the Army Discharge Review Board (ADRB) granted the applicant relief in the form of an upgrade of the characterization of his service to uncharacterized.  However, the ADRB’s action did not entail a change of reason for separation and/or the RE code.  

9.  Accordingly and subsequent to the ADRB's decision, the applicant was issued a new DD Form 214.  Item 24 (Character of Service) shows the entry "Uncharacterized" and Item 28 (Narrative Reason for Separation) shows the entry "In Lieu of Trial by Court-Martial."  Item 26 of this DD Form 214 shows the entry "KFS" and item 27 shows an RE code of “4.”

10.  The applicant submitted a self-authored statement and three character reference letters as follows:

	a.  in his self-authored statement, dated 11 February 2009, the applicant acknowledges that he made an error in judgment and now realizes that there were better ways to handle the situation.  He adds that he should be given a second chance and the ADRB should have also upgraded his RE code;

	b.  in an undated character reference letter, the applicant's brother, a U.S. Navy officer, states that he is certain that the applicant's motivation and unique skills would make him a valuable member of the armed forces.  He adds that his brother should be given a second chance to serve his country; 

	c.  in a character reference letter, dated 15 January 2001, the applicant's mother states that the applicant is a leader as it was pointed out during basic combat training at Fort Benning, GA, he is extremely strong, and would be an asset to the military.  She appeals to this Board to give her son a second chance; and

	d.  in a character reference latter, dated 15 January 2008, the applicant's uncle states that his nephew is a natural leader and that the military is a perfect fit for him.  He also appeals to this Board to upgrade the applicant’s RE code.

11.  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, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

12.  Army Regulation 635-200 states, in pertinent part, 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 (Regular Army and Army Reserve Enlistment Program), covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the US Army Reserve.  Table 3-1 included a list of the Regular Army Reenlistment Eligibility Codes (RE codes).  An RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army.  They are qualified for enlistment if all other criteria are met.  An RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable.  They are ineligible unless a waiver is granted.  An RE-4 applies to Soldiers separated from the last period of service with a nonwaivable disqualification.

13.  Army Regulation 635-5-1 (Separation Program Designator Codes) states that the Separation Program Designator (SPD) codes are three-character alphabetic combinations which identify reasons for, and types of, separation from active duty.  The primary purpose of SPD codes is to provide statistical accounting of reasons for separation.  They are intended exclusively for the internal use of DOD and the military services to assist in the collection and analysis of separation data.  The SPD code of "KFS" is the correct code for Soldiers separated under chapter 10 of Army Regulation 635-200.  

14.  The SPD/RE Code Cross Reference Table, dated 1 March 2001, provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers.  This cross reference table shows the SPD code and a corresponding RE code.  The SPD code of "KFS" has a corresponding RE code of "4."

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his RE code of RE-4 should be upgraded to a more favorable code.

2.  The applicant’s records show he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.  In addition, he stated in his request for discharge that under no circumstances did he desire to perform further military service.

3.  The evidence of record further confirms that the applicant’s RE code was assigned based on the fact that he was separated under the provisions of chapter 10 of Army Regulation 635-200, in lieu of trial by court-martial.  The RE code associated with this type of discharge is an RE-4.  Therefore, the applicant received the appropriate RE code associated with his discharge.

4.  The ADRB determined that the applicant's characterization of service was inequitable and upgraded it to an uncharacterized discharge.  The ADRB also considered the applicant's RE code along with the discharge upgrade action and determined that the RE code should not be changed.

5.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the RE code is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  Therefore, the applicant is not entitled to relief. 

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)                                         AR20090002927



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ABCMR Record of Proceedings (cont)                                         AR20090002927



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