IN THE CASE OF:	  

		BOARD DATE:	  24 November 2009 

		DOCKET NUMBER:  AR20090010658 


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, in effect, that his reentry (RE) code be changed to a "2" or "3" so he can reenter the Army National Guard.  He also requests upgrade of his under other than honorable conditions discharge to a general, under honorable conditions discharge.

2.  The applicant states that an RE-4 was issued unfairly given the circumstances at the time.  He contends that he had a medical emergency with his daughter since her mother was listed as an absent parent.  He claims that he deserves a fighting chance to finish his prior enlistment in the Army National Guard.

3.  The applicant provides a copy of his DA Form 31 (Request and Authority for Leave), dated 7 June 2002; a copy of his DD Form 1172 (Application for Uniformed Services Identification Card - DEERS Enrollment); a copy of his DD Form 4 (Enlistment/Reenlistment Document, Armed Forces of the United States), dated 29 November 2001; a copy of his DFAS Form 702 (Defense Finance and Accounting Service Military Leave and Earnings Statement), dated 1 September 2005; a copy of his statement, dated 24 April 2002, voluntarily waiving his enlistment commitment; his infant daughter's DD Form 1173 (United States Uniformed Services Identification and Privilege Card), issued on 9 May 2002; and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 enlisted in the Regular Army (RA) on 14 January 2002 and trained as an avenger crewmember.  

3.  The applicant went absent without leave (AWOL) on 26 April 2002 and he returned to military control on 6 June 2002.  Charges were preferred against the applicant for the AWOL period and trial by special court-martial was recommended.  

4.  On 14 June 2002, the applicant consulted with counsel and requested discharge in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He indicated in his request that he understood he might be discharged under conditions other than honorable and furnished an other than honorable conditions discharge; that he might be ineligible for many or all benefits administered by the Department of Veterans Affairs; that he would be deprived of many or all Army benefits; and that he might be ineligible for many or all benefits as a veteran under both Federal and State law.  He acknowledged that he might expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.  He elected not to make a statement in his own behalf.  

5.  On 5 September 2002, the separation authority approved the applicant's request for discharge and directed that he be furnished a discharge under other than honorable conditions.

6.  Accordingly, the applicant was discharged under other than honorable conditions on 9 October 2002 under the provisions of Army Regulation 
635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  

He had served a total of 7 months and 23 days of creditable active service with 41 days of lost time due to AWOL.

7.  Item 25 (Separation Authority) on the applicant's DD Form 214 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."

8.  On 9 January 2003, the Army Discharge Review Board denied the applicant's request for an honorable discharge.

9.  The applicant enlisted in the Kansas Army National Guard (KSARNG) on
2 November 2004 and he was discharged on 31 March 2005 for erroneous enlistment or extension.  His character of service was uncharacterized.

10.  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.

11.  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-2 was rescinded effective 28 March 1995.

	b.  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. 

	c.  RE-4 applies to Soldiers who are separated from their last period of service with a nonwaivable disqualification.  They are ineligible for enlistment.

12.  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.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that 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, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the 
individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

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.  The applicant's contentions were carefully considered.  However, his 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 request to change his RE code.

2.  The applicant’s brief record of service included 41 days of lost time.  As a result, his record of service was not satisfactory.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge.

3.  The applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial, was administratively correct and in conformance with applicable regulations.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.

4.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.



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)                                         AR20090010658



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ABCMR Record of Proceedings (cont)                                         AR20090010658



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