BOARD DATE:	  12 January 2010

		DOCKET NUMBER:  AR20090009090 


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 be changed or his under other than honorable conditions discharge be upgraded so he can reenter the Army.

2.  The applicant states that his record is not in error or unjust, he just wants to make things right by serving an honorable career in the Armed Forces.  He also states that he realize he messed-up his first enlistment by making a stupid mistake and he would love the opportunity to rectify it.  He states that he has been trying to get a waiver for his RE code, but that has not worked.

3.  The applicant provides no additional documentation in support of his request.

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 records show he enlisted in the Delayed Entry Program on 28 July 1997.  He enlisted in the Regular Army in pay grade E-1 on 15 July 1998, for 3 years.  He completed training and he was awarded military occupational specialty 11B (Infantryman).  He was promoted to pay grade E-4 on 1 May 2000.

3.  The applicant was reported absent without leave (AWOL) on 4 September 2001 and dropped from the rolls on 5 October 2001.  

4.  On 22 October 2001, a DD Form 458 (Charge Sheet) was prepared by the Commander, Company A, 2nd Battalion, 1st Infantry, Fort Wainwright, Alaska.  The applicant was charged with one specification of being AWOL from 
4 September 2001 to an unknown date.

5.  The applicant was apprehended by civilian authorities and returned to military control on 10 December 2002.

6.  All the documents containing the facts and circumstances surrounding the applicant's discharge are not present in the available records.  However, his records contains a copy of his DD Form 214 which shows that he was discharged on 23 December 2002, in pay grade E-4, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), chapter 10, in lieu of trial by court-martial.  His DD Form 214 shows he was credited with completing 3 years, 7 months, and 4 days of net active service and no lost time.  However, his record shows that he had an extensive period of lost time.

7.  Item 26 (Separation Code) of the applicant’s DD Form 214 shows "KFS" and Item 27 (RE Code) shows "RE-3."

8.  On 22 September 2006, the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge.

9.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program), in effect at the time, provided that prior to discharge or release from active duty, individuals would be assigned RE codes based on their service records or the reason for discharge.  Chapter 3 of the regulation included a list of Armed Forces reentry codes, including Regular Army RE codes.  RE-3 applies to 
persons not qualified for continued Army service, but the disqualification is waivable.  RE codes may be changed only if they are determined to be administratively incorrect.  


10.  Army Regulation 635-5-1 (Separation Program Designator Codes), in effect at the time, prescribed the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designator (SPD) codes to be used for these stated reasons.  That regulation showed that the SPD of "KFS" as shown on the applicant’s DD Form 214 was appropriate when the narrative reason for involuntary discharge was "in lieu of trial by court-martial" and the authority for discharge was Army Regulation 635-200, chapter 10.

11.  The SPD/RE Code Cross Reference Table, in effect at the time, provided instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers separated for cause.  It also showed SPD codes with their corresponding RE codes.  The Soldier’s file and other pertinent documents must be reviewed in order to make a final determination.  The SPD code of "KFS" had a corresponding RE code of "3" when that Soldier had lost time due to AWOL or confinement.

12.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provided, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request could be submitted at any time after charges had been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally considered appropriate.

13.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

14.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.



DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to a change of his RE code.  He has submitted neither probative evidence nor a convincing argument in support of his request and has not shown error or inequity to justify the relief he now seeks.  

2.  The applicant states that he would like his RE code changed so he can reenlist.  However, the RE code of 3 is consistent with the basis for his separation and in this case there is no basis to correct the existing code.  The applicant has failed to show, through evidence, or the evidence of record, that his separation which resulted in him receiving an RE code of 3 was in error.  

3.  The applicant is also not entitled to an upgrade of his discharge.  The evidence of record shows the applicant was AWOL from 9 September 2001 to 10 December 2002 and accumulated a total of 463 days of lost time due to being AWOL.  An absence of this duration is serious and there is insufficient evidence to show the applicant now deserves an upgrade of his discharge to a general or fully honorable discharge.  The applicant has provided insufficient evidence to show his discharge was unjust.  He also has not provided evidence sufficient to mitigate the character of his discharge.

4.  It appears the applicant's administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights.  In the absence of evidence to the contrary, Government regularity in the discharge process is presumed and he was properly discharged in accordance with pertinent regulations with due process.

5.  In order to justify correction of a military record, the applicant must show, 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.

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)                                         AR20090009090





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ABCMR Record of Proceedings (cont)                                         AR20090009090



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