IN THE CASE OF:	

		BOARD DATE:	  8 October 2009

		DOCKET NUMBER:  AR20090013046 


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, change of his Reentry (RE) Code from "4" to "3."

2.  The applicant states, in effect, that the RE code he was issued at the time of his discharge was overly harsh for a one-time infraction of being absent without leave (AWOL).  He further states since his separation from the Army he has grown into an educated and worthy candidate for recruitment and reenlistment and his RE code bans him unfairly from reconsideration for military training.

3.  The applicant indicates that he desires to personally appear before the Board.

4.  The applicant provides a photograph of himself and a self-authored letter 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 record shows he enlisted in the Regular Army and entered active duty on 3 September 2002 and that he was awarded military occupational specialty (MOS) 11B (Infantryman).

3.  The applicant's record contains three separate DA Forms 4187 (Personnel Actions) which show that after entering active duty his duty status was changed from present for duty to absent without leave (AWOL) on 11 November 2002, from AWOL to dropped from the rolls on 11 December 2002, and from dropped from the rolls to present for duty/returned to military control on 25 January 2003.

4.  The applicant's record contains a DD Form 458 (Charge Sheet), dated 29 January 2003, which shows he was charged with violating Article 86 of the Uniform Code of Military Justice (UCMJ) for being AWOL for the period 11 November 2002 to 24 January 2003.  

5.  On 31 January 2003, the applicant voluntarily requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations), chapter 10, which was ultimately approved by his commander on 25 March 2003.  In his request for discharge, the applicant acknowledged with his signature that he understood by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense, and the imposition of a bad conduct or dishonorable discharge was authorized.  He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  Additionally, the applicant declined a physical evaluation prior to his separation.  He also indicated, “Moreover, I hereby state that under no circumstances do I desire further rehabilitation, for I have no desire to perform further military service.”

6.  On 30 April 2003, the applicant was discharged.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time of his separation shows that he was discharged in lieu of trial by court-martial and that his character of service was under other than honorable conditions.  The separation code applied was "KFS" and the reentry code applied was "4."

7.  The applicant provides a self-authored letter which essentially stated after his discharge he quickly reentered the workforce and gained steady employment to include supervisory positions.  He further stated that he made a horrible decision to leave basic training but he was young and naïve and he had sustained a leg injury that merited convalescent leave which was ultimately disapproved by his commander.  He continues that he was frustrated at his chain of command's lack of concern for his well being, so he took a bus home to recover and use his 30 days of earned leave.  While at home he researched the internet and he came across instructions for fast discharging at Fort Sill.  He stated his intentions were to discharge, recover, and then re-enlist; however, nowhere in the process did anyone counsel him regarding the reentry code and its implications.

8.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.

9.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes identifies the specific authorities, reasons for separating Soldiers from active duty and the SPD codes to be entered on the DD Form 214 at the time of separation.  It shows, in pertinent part, that SPD code "KFS" should be used when the narrative reason of an enlisted Soldiers separation is "in lieu of trial by court-martial."

10.  The Separation Program Designator Code (SPD)/Reentry (RE) Code Cross Reference Table, dated 31 March 2003, provides instructions for determining the RE code for active Army Soldiers.  It shows, in pertinent part, that RE code "4" is appropriate for Soldiers separated with an SPD code of "KFS."

11.  Army Regulation 15-185 governs operations of the ABCMR.  Paragraph 2-11 of this regulation states that applicants do not have a right to a hearing before the ABCMR.  The regulation provides that the Director of the ABCMR or the ABCMR may grant a formal hearing before which the applicant, counsel, and witnesses may appear whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the RE- 4 code he received at the time of his discharge was overly harsh and inappropriate for a one-time infraction of AWOL was carefully considered.  However, by regulation, an RE- 4 is the proper reentry code to assign members who elect separation in lieu of trial by court-martial.

2.  The applicant's post service conduct and accomplishments are noteworthy and commendable.  However, they are not sufficiently mitigating to warrant a change to an appropriately awarded RE code at the time of his separation from the Army.

3.  The sincerity of the applicant's statement is not in question; however, his record is void and the applicant does not provide any documents to show that he suffered a leg injury prior to his separation from the Army.  Further, when given the opportunity for a physical evaluation during the processing of his separation, the applicant declined this option.  In addition, he indicated at the time that he had no desire to perform further military service

4.  Although the applicant requested to appear before the Board personally, there is sufficient evidence available in the record to make a fair and impartial decision in this 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)                                         AR20090013046



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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