IN THE CASE OF:
BOARD DATE: 28 July 2009
DOCKET NUMBER: AR20090003736
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 (RE) Code 4 be changed so that he may reenlist in the Army.
2. The applicant states that he was instructed by the recruiter to get his RE code updated or corrected so that he may reenlist.
3. The applicant provides no documentary evidence 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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. On 15 March 2000, the applicant enlisted in the Regular Army. He completed his initial training and was awarded military occupational specialty (MOS) 13B (Cannon Crewmember).
3. The evidence of record shows that the applicant was charged with being absent without leave (AWOL) from on or about 20 November 2000 to on or about 4 May 2001.
4. On 29 January 2002, the applicant was discharged in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10. Accordingly, he was given a Separation Program Designator (SPD) Code of KFS and an RE Code of 4. His character of service was under other than honorable conditions.
5. Army Regulation 635-200 (Personnel Separations) 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 trail by court-martial. A discharge under other than honorable conditions is normally considered appropriate.
6. Army Regulation 601-210 (Active and Reserve Components Enlistment Program) prescribes eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the Army Reserve. Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment and includes a list of armed forces RE Codes including RA RE codes. RE 4 applies to persons separated from their last period of service with a non-waivable disqualification. That regulation further provides that RE codes may only be changed if they are determined to be administratively incorrect.
7. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities and reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. The SPD code of KFS was the appropriate code for the applicant based upon the guidance provided in Army Regulation 635-5-1 for Soldiers separating under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial. Additionally, the SPD/RE Code Cross Reference Table establishes RE Code 4 as the proper RE code to assign to Soldiers separated for this reason.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that his RE code should be changed so that he can reenter military service.
2. There is no apparent basis for removal or waiver of the applicants disqualification that established the basis for his discharge. The applicants desire to reenter military service is noted; however, there are no provisions authorizing the change of an RE code for this purpose.
3. 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. In view of the foregoing, there is no basis for granting the applicant's request.
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) AR20090003736
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ABCMR Record of Proceedings (cont) AR20090003736
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