BOARD DATE: 6 August 2009
DOCKET NUMBER: AR20090006646
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 be changed from a "4" to a "3" so he can reenter the Army.
2. The applicant states that he wants a chance to get back in the Army and become a good Soldier. He would appreciate another chance to make it right for himself and the Army.
3. The applicant provides no additional 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. The applicant enlisted in the Regular Army (RA) on 27 July 2000. The applicant went absent without leave (AWOL) on 24 October 2000 and returned to military control on 19 March 2001. Charges were preferred against the applicant for the AWOL period. On 30 March 2001, the applicant requested discharge in lieu of trial by court-martial. He was discharged under other than honorable conditions on 14 January 2002 under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), chapter 10, in lieu of trial by court-martial. He had served a total of 1 year and 22 days of creditable active service with 146 days of lost time due to AWOL.
3. Item 25 (Separation Authority) on the applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the entry "AR [Army Regulation] 635-200, CHAP [chapter] 10." Item 26 (Separation Code) on his DD Form 214 shows the entry "KFS." Item 27 (Reentry Code) on his DD Form 214 shows the entry "4." Item 28 (Narrative Reason for Separation) on his DD Form 214 shows the entry, "IN LIEU OF TRIAL BY COURT-MARTIAL."
4. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons. The regulation states the reason for discharge based on separation code "KFS" is "in lieu of trial by court-martial" and the regulatory authority is Army Regulation
635-200, chapter 10.
5. 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 RA and the U.S. Army Reserve (USAR). Table 3-1 included a list of the RA RE codes:
a. 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.
b. RE-4 applies to Soldiers who are separated from their last period of service with a nonwaivable disqualification. They are ineligible for enlistment.
6. The Separation Program Designator Code/Reentry Code Cross Reference Table, dated October 1999, shows that Soldiers given a separation program designator of "KFS" will be given an RE code of 4.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record confirms that the applicants RE code was assigned based on the fact that he was discharged under the provisions of Army Regulation 635-200, chapter 10. 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.
2. The applicant's RE code was administratively correct and in conformance with applicable regulations at the time of his separation. Therefore, there is no basis for granting the applicant's requested 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.
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