BOARD DATE:	  11 August 2009

		DOCKET NUMBER:  AR20090004287 


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 DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to show he served in Iraq from 
7 January 2004 to 9 October 2004 vice 15 April 2004 through 18 September 2004 as currently reflected on his DD Form 214.  The applicant also asks that his RE (Reentry) code be changed.

2.  The applicant states he served in Iraq from 7 January to 9 October 2004.  He also states that his RE Code is unfair because it was based on one isolated incident during more than 4 years of service with no adverse action.

3.  The applicant provides a copy of part of the case report from the Army Discharge Review Board (ADRB) which he states is the only proof he has of his time in Iraq.

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.  Records available to the Board indicate the applicant entered active duty as a Regular Army (RA) enlisted Soldier on 5 August 1998.

3.  Information obtained from the Defense Finance and Accounting Service (DFAS) confirmed the applicant received hostile fire pay for the period January through September 2004 while deployed to Kuwait/Iraq and that his actual “boots on the ground” in theater was 9 January 2004 through 22 September 2004.

4.  The copy of the case report from the ADRB, submitted by the applicant, notes that during that board’s deliberation it found that the “evidence of record shows that on 30 July 2004, the applicant was charged with wrongfully having a sexual relationship with a lower ranking Soldier within his chain of command, on diverse occasions between (040201-040601)….”  The applicant notes he was in Iraq during this period.

5.  On 8 October 2004 the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), chapter 10, in lieu of trial by court-martial, with an under other than honorable conditions discharge.  Documents associated with the applicant’s administrative separation were not available to the Board; however, the charges which served as the basis for the separation action are those noted in paragraph 4 above.  His DD Form 214 shows that he was assigned a Separation Program Designator (SPD) code of “KFS” and an RE code of “4.”  Block 18 contains the statement “SERVICE IN IRAQ 20040415-20040918.

6.  On 26 October 2006 the ADRB upgraded the character of the applicant’s discharge from under other than honorable conditions to general, under honorable conditions.  That board indicated the original characterization was too harsh based on the overall length and quality of the applicant’s service and that his combat service mitigated the discrediting entries in his service record.  That board, however, concluded the reason for his discharge was both proper and equitable.

7.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies and procedures for enlistment and processing into the RA and the U.S. Army Reserve (USAR).  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.  An RE code 4 indicates separation from the last period of service with a disqualification which cannot be waived and ineligibility for reenlistment.

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.  This table states that when the SPD is "KFS" then an RE Code of 4 will be given.

9.  Army Regulation 601-210 also provides, in pertinent part, that RE codes may only be changed if they are determined to be administratively incorrect. 

10.  Army Regulation 635-5 (Separation Documents) notes that block 18 will reflect the statement “SERIVCE IN (NAME OF COUNTRY DEPLOYED) FROM (INCLUSIVE DATES FOR EXAMPLE, YYYYMMDD-YYYYMMDD)” for active duty Soldiers deployed with his or her unit during their continuous period of active service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's RE code is based on his reason for discharge and cannot be changed unless the applicant's narrative reason for separation is changed.  His narrative reason for separation was based on his discharge in lieu of trial by court-martial.  His prior good service does not change the basis for his discharge and the Board could find no basis upon which to change this reason for separation in spite of the fact that the ADRB upgraded the applicant's characterization of discharge to general, under honorable conditions.  

2.  The evidence does not support a conclusion the applicant was actually in Iraq from 7 January 2004 to 9 October 2004 as he contends.  He provides no evidence to support that contention.  In fact, it is noted the applicant was discharged on 8 October 2004 and as could not have been in Iraq at that point.

3.   Additionally, there is no evidence which confirms the source of the dates of deployment currently reflected in Block 18 on his DD Form 214.  Rather, information obtained from DFAS states that his “boots on the ground” in the theater of operations spanned the period 9 January 2004 through 22 September 2004.  

4.  While the evidence certainly confirms the applicant was in Kuwait/Iraq, the dates of his deployment are not entirely clear.  However, given the dates of 
deployment confirmed by information from DFAS, the dates currently reflected on his DD Form 214 are incorrect.  As such, it would be appropriate, and in the interest of justice to correct Block 18 to reflect “SERVICE IN IRAQ/KUWAIT FROM 20040109 - 20040922.”

5.  An SPD code of "KFS" applies to persons who are administratively discharged in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  The SPD/RE Code Cross Reference Table shows that an RE code of 4 is the applicable RE code assigned for individuals discharged in lieu of trial by court-martial.  Therefore, there is no basis for granting the applicant's requested relief in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x____  ___x____  ___x____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by deleting from Block 18 of the applicant's DD Form 214 the entry "SERVICE IN IRAQ 20040415 – 20040918" and replacing it with the entry “SERVICE IN IRAQ/KUWAIT FROM 20040109 - 20040922.”

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to changing his RE Code.



      _________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)                                         AR20090004287



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ABCMR Record of Proceedings (cont)                                         AR20090004287



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