IN THE CASE OF:	  

		BOARD DATE:	  1 October 2009

		DOCKET NUMBER:  AR20090008066 


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 4 be changed so that he may reenter the Army.

2.  The applicant states that he was told his RE code would be changed after a year and that he could reenter the Army if he chose to do so.  He knows what he did was wrong and is sorry.  His family means the world to him.  He and his wife went through marriage counseling and now everything is great.  He wants and needs a career in the Army.  He loves the Army and is willing to do whatever it takes.

3.  The applicant provides no 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.  On 14 July 1999, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 44B (Metal Worker).

3.  On or about 20 October 2003, the applicant went absent without leave (AWOL).  He remained AWOL until on or about 13 January 2004.

4.  On an unknown date, the applicant's battalion commander recommended the applicant be tried by a special court-martial empowered to adjudge a bad conduct discharge.

5.  On 2 April 2004, the applicant requested to be discharged under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, in lieu of trial by court-martial.  On 9 April 2004, the appropriate authority approved the applicant's request for discharge and directed that the applicant be issued a general discharge.

6.  On 23 April 2004, 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 honorable conditions.

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of this 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 trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

8.  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 this 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.  This regulation further provides that RE codes may only be changed if they are determined to be administratively incorrect.

9.  Army Regulation 635-5-1 (Separation Program Designator 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 (Certificate of Release or Discharge from Active Duty).  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 4 as the proper RE code to assign to Soldiers for this reason.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his RE code was to be changed after a year.

2.  A discharge under other than honorable conditions is normally considered appropriate for a discharge in lieu of court-martial.  Even so, the separation authority directed that the applicant receive a general under honorable conditions discharge.

3.  The RE 4 establishing his ineligibility for enlistment/reenlistment was correctly entered on his separation document in accordance with governing regulations.  There is no evidence of error or injustice.

4.  There is no apparent basis for removal or waiver of the applicant’s disqualification that established the basis for the RE 4.  The applicant’s desire to continue in the service to his country is admirable; however, there are no provisions authorizing the change of an RE code for this purpose.

5.  Furthermore, there are no provisions for an automatic change of RE codes after any given period of time.

6.  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)                                         AR20090008066



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ABCMR Record of Proceedings (cont)                                         AR20090008066



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