IN THE CASE OF:	

		BOARD DATE:	       9 JUNE 2009

		DOCKET NUMBER:  AR20090003515 


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, correction of appropriate military records to show a reentry eligibility (RE) code which would allow enlistment.

2.  The applicant states that he wants to rejoin the Army.  He explained that after several deaths in his family, he was the only person who could take care of his family.

3.  The applicant provides no additional documentary 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's records show he enlisted in the Regular Army on 9 August 1996.  He completed basic combat and advanced individual training and was awarded the military occupational specialty of concrete-asphalt equipment operator.  The highest rank he attained while serving on active duty was private/
pay grade E-2.

3.  On 16 December 1997, the applicant was charged with one specification of absent without leave (AWOL) during the period 6 May 1997 through 10 December 1997.

4.  On 18 December 1997, the applicant voluntarily requested discharge in lieu of court-martial under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, because of charges that had been preferred against him under the Uniform Code of Military Justice, some or all of which authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged that he was making the request of his own free will and that he had been advised of the implications that are attached to it.  He acknowledged that by submitting the request for discharge that he was guilty of the charge against him or of (a) lesser included offense(s) therein contained which also authorized the imposition of a bad conduct discharge or dishonorable discharge.  He indicated that under no circumstances did he desire further rehabilitation, for he had no desire to perform further military service.

5.  The applicant acknowledged that he had consulted with counsel who fully advised him of the nature of his rights under the Uniform Code of Military Justice.  The applicant further acknowledged he understood that if his discharge request was approved, he may be discharged under conditions other than honorable and that he would 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, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

6.  He also acknowledged that there is no automatic upgrading or review by any Government agency of a less than honorable discharge and that he must apply to the Army Discharge Review Board or the ABCMR if he wished a review of his discharge.  He further acknowledged that the act of consideration by either board did not imply that his discharge would be upgraded.

7.  On 25 March 1998 the applicant's request for discharge in lieu of trial by court-martial was approved by the appropriate authority.



8.  Accordingly, on 8 April 1998 the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10 (Discharge in Lieu of Trial by Court-Martial).  The DD Form 214 the applicant was issued shows his service was characterized as under other than honorable conditions.  He was assigned a separation program designator (SPD) of KFS and an RE code of RE-3.  He completed 1 year and 21 days of active military service with 219 days of lost time due to AWOL.

9.  Army Regulation 635-5-1 (SPD Codes), Table 2-3, states that the SPD code KFS denotes in lieu of trial by court-martial.

10.  The Army Human Resources Command publishes a cross-reference list of SPD and RE codes.  The cross-reference list in effect at the time showed that an SPD code of KFS was assigned an RE code of 3.

11.  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 and processing into the Regular Army and the U.S. Army Reserve Components.  Chapter 3 of that regulation prescribes basic eligibility for prior-service applicants for enlistment.  That chapter includes a list of Armed Forces RE codes.  Table 3-1 of the regulation states that a code of RE-3 applies to persons who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable.

DISCUSSION AND CONCLUSIONS:

1.  While the applicant requested his RE code be changed, it is necessary to consider whether the reason for his discharge should be changed since the RE code is based on the reason for discharge.  While the applicant states he went and remained AWOL because he was the only person who could take care of his family, he has submitted no evidence to support this contention.  However, even if he did, it would not form a basis to upgrade his discharge or change his RE code.  The applicant's decision to go AWOL instead of submitting a request to be separated due to dependency was a decision he made.  The applicant admitted guilt to the charge of being AWOL and voluntarily requested discharge to avoid trial by court-martial.

2.  The applicant’s RE code was administratively correct and in conformance with applicable regulations at the time of his separation.  

3.  The applicant was not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable under Army Regulations.

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)                                         AR20090003515



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ABCMR Record of Proceedings (cont)                                         AR20090003515



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