IN THE CASE OF:	  

		BOARD DATE:	  8 October 2009

		DOCKET NUMBER:  AR20090007159 


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 of RE-3 be changed to an RE-1.

2.  The applicant states he was under the assumption his RE code was changed when his discharge was upgraded.  He states he is trying to enlist in the Reserve.

3.  The applicant provides no additional evidence or official documentation 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 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 military personnel records show he enlisted in the Regular Army on 21 June 1990 for a period of 4 years.  He reenlisted 25 February 1994 for a period of 2 years.

3.  The applicant's separation processing package was not available for the Board's review.

4.  On 27 March 1996, the applicant was discharged under the provisions of chapter 10 of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) in lieu of trial by court-martial.  The applicant was assigned a separation program designator (SPD) code of KFS and assigned an RE code of 3.  He had completed 5 years, 9 months, and 7 days of active service that was characterized as under other than honorable conditions.

5.  On 26 August 2008, the Army Discharge Review Board (ADRB) reviewed the applicant's request to upgrade his discharge and determined that the applicant's discharge was properly issued but inequitable as to the characterization.  The ADRB granted a change of characterization to honorable.  However, the ADRB determined that the reason for discharge was proper and equitable.

6.  Army Regulation 635-5-1 (SPD Codes), then in effect, prescribed the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPDs that were to be used for these stated reasons.  The regulation showed that the SPD code KFS as shown on the applicant's DD Form 214 specified the narrative reason for discharge as "in lieu of trial by court-martial."

7.  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 (Regular Army and Army Reserve Enlistment Program), then in effect, provided eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the U.S. Army Reserve.

8.  Paragraph 3-22 of Army Regulation 601-210, then in effect, stated that an 
RE-3 applied to individuals who were not qualified for continued Army Service, but the disqualification was waivable.  This paragraph also stated that an RE-1 applied to persons completing their term of service who were considered qualified to reenter the Army.

9.  Army Regulation 601-210, both current and in effect at the time, provides that individuals assigned an RE-3 are ineligible for enlistment unless a waiver is granted.

10.  Paragraph 3-27 of Army Regulation 601-210, then in effect, provided that RE codes may be changed only if they are determined to be administratively incorrect.

11.  The SPD/RE Code Cross-Reference Table, in effect at the time, showed that the appropriate RE code for the SPD code of KFS was RE-3.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was discharged on 27 March 1996 under the provisions of chapter 10 of Army Regulation 635-200.  The applicant was assigned an SPD code of KFS and an RE code of 3.

2.  The applicant was granted a change in the characterization of his discharge by the ADRB.  However, the reason for separation remains appropriate due to the fact the applicant requested to be discharged in lieu of a trial by court-martial.  Therefore, the SPD code of KFS is correct.

3.  The SPD/RE Code Cross-Reference Table shows that for the SPD code KFS, an RE code of "3" is assigned.  Therefore, the applicant's RE code is administratively correct.

4.  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 that requirement.

5.  The applicant is advised that although his RE-3 code was properly assigned, this does not mean that he is totally disqualified from returning to military service.  The disqualification upon which the RE-3 codes were based may be waived for enlistment purposes.  The applicant is advised that if he desires to enlist, he should contact a local recruiter who can best advise him on his eligibility for returning to military service.  These individuals can best advise a former service member as to the needs of the service at the time and may process enlistment waivers for the applicant's RE code.



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)                                         AR20090007159



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ABCMR Record of Proceedings (cont)                                         AR20090007159



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