Search Decisions

Decision Text

ARMY | BCMR | CY2009 | 20090013046
Original file (20090013046.txt) Auto-classification: Denied

		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



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

Similar Decisions

  • ARMY | BCMR | CY2009 | 20090013104

    Original file (20090013104.txt) Auto-classification: Denied

    On 12 May 2003, the applicant was accordingly discharged. The SPD code of "KFS" is the correct code for Soldiers separating under chapter 10 of Army Regulation 635-200. The evidence of record further confirms that the applicant's RE code was assigned based on the fact that he was separated under the provisions of chapter 10 of Army Regulation 635-200 in lieu of a trial by court-martial.

  • ARMY | BCMR | CY2010 | 20100000115

    Original file (20100000115.txt) Auto-classification: Denied

    The applicant requests that his under other than honorable conditions discharge be changed to an uncharacterized discharge and that his Reentry Eligibility (RE) Code be changed to a 3. On 9 September 2009, the ADRB, after careful consideration of the applicant's military records and all other available evidence, determined the applicant's discharge was proper and equitable. c. Records show the applicant's assigned RE Code of 4 is appropriate based on the authority and reason for his discharge.

  • ARMY | BCMR | CY2008 | 20080019457

    Original file (20080019457.txt) Auto-classification: Denied

    The applicant's military records show that he enlisted in the Regular Army on 22 October 2002. On 27 October 2003, the applicant voluntarily requested discharge under the provisions of chapter 10 (Discharge in Lieu of Trial by Court-Martial), Army Regulation 635-200 (Enlisted Personnel), in lieu of trial by court-martial after charges were preferred against him under the Uniform Code of Military Justice (UCMJ) which authorized the imposition of a bad conduct or dishonorable discharge. His...

  • ARMY | BCMR | CY2009 | 20090003617

    Original file (20090003617.txt) Auto-classification: Denied

    THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests that his 2002 discharge under other than honorable conditions be upgraded and that his Reentry (RE) Code 4 be changed to permit him to return to military service. He notes he was then given the option to be demoted and returned to his unit or to be “chaptered out of the Army.” He states that even though he acted on the advice he was given he was separated with an under other than honorable conditions discharge...

  • ARMY | BCMR | CY2009 | 20090001791

    Original file (20090001791.txt) Auto-classification: Denied

    The applicant requests correction of his reentry eligibility (RE) code from RE-4 to RE-3 so he may reenter military service. The "KFS" SPD code is the correct code for Soldiers separating under chapter 10 of Army Regulation 635-200. Therefore, the applicant received the appropriate RE code associated with his discharge.

  • ARMY | BCMR | CY2009 | 20090003540

    Original file (20090003540.txt) Auto-classification: Denied

    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. The applicant's contentions that his record should be corrected to show he was separated while in an ELS, that his service was described as uncharacterized, and that he be issued an RE-3 code because he had been coerced into requesting discharge and that he can be rehabilitated was carefully considered. ...

  • ARMY | DRB | CY2013 | AR20130003348

    Original file (AR20130003348.txt) Auto-classification: Denied

    The DD Form 214 indicates that on 17 September 2004, the applicant was discharged under the provisions of Chapter 10, AR 635-200, in lieu of trial by court-martial with a characterization of service of under other than honorable conditions. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided a DD Form 293 and a copy of the DD Form 214 for the period of service under review. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities...

  • ARMY | BCMR | CY2003 | 2003088726C070403

    Original file (2003088726C070403.rtf) Auto-classification: Denied

    The applicant requests correction of military records as stated in the application to the Board and as restated herein. The Board considered the following evidence: His DD Form 214 shows he was discharged with a separation code of “KFS” (For the Good of the Service – In Lieu of Trial by Court-Martial) and issued a RE code of RE-4.

  • ARMY | BCMR | CY2009 | 20090015094

    Original file (20090015094.txt) Auto-classification: Denied

    THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. On 2 March 2006, the approving authority granted the applicant's request for discharge in lieu of trial by court-martial with the issuance of an under other than honorable conditions discharge. 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 | BCMR | CY2009 | 20090006292

    Original file (20090006292.txt) Auto-classification: Denied

    The applicant requests an upgrade of his Under Other than Honorable Conditions discharge and his reentry eligibility (RE) code so he will be eligible to reenter the Army. There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations. The applicant's records show he was over 20 years of age at the time of his enlistment and at the time of his offenses.