BOARD DATE:	  21 January 2010

		DOCKET NUMBER:  AR20090014640 


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 Eligibility (RE) code of 4 be changed to a more favorable code.  

2.  The applicant states, in effect, he did not fully understand the meaning of the 
RE code he was assigned.  He states he was pushed through the separation process and failed to understand the seriousness of his separation proceedings.  He would like to reenter military the service, but his RE code prevents him from doing so. 

3.  The applicant provides a VA Form 10-10EZ (Application for Health Benefits), DD Form 214 (Certificate of Release or Discharge from Active Duty), and four 
third-party statements 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 records show he enlisted in the Regular Army and entered active duty on 11 April 2001.  He was trained in and awarded military occupational specialty 71L (Administrative Specialist), and the highest rank he attained while serving on active duty was private (PVT).  His record documents no acts of valor or significant achievement.

3.  On 23 October 2002, a DD Form 458 (Charge Sheet) was prepared preferring court-martial charges against the applicant for violating Articles 86 (six specifications) by failing to go to his appointed place of duty at the time prescribed on five separate occasions between 1 June  and 29 August 2002, and being absent without leave (AWOL) from 24 September through 1 October 2002; for failure to go to his appointed place of duty at the prescribed time on five separate occasions and for being absent without leave (AWOL) from 
24 September through 1 October 2002; and Article 112a, by wrongfully possessing marijuana on 31 May 2002.  

4.  On 14 November 2002, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the effects of an under other than honorable conditions (UOTHC) discharge, and of the rights available to him.  Subsequent to receiving this legal counsel the applicant voluntarily requested discharge for the good of the service in lieu of trial by 
court-martial.  He confirmed he understood that by requesting discharge, he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He confirmed that under no circumstances did he desire further rehabilitation for he had no desire to perform further military service.  

5.  In his request for discharge, the applicant also 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 laws.  He further indicated that he understood he could encounter substantial prejudice in civilian life by reason of a UOTHC discharge and he elected not to submit a statement in his own behalf.

6.  On 25 November 2002, the separation authority approved the applicant’s request for discharge and directed that he receive a UOTHC discharge.  On 
18 December 2002, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time shows he completed a total of 1 year, 
8 months, and 1 day of active military service.  It also shows he earned the National Defense Service Medal and the Army Service Ribbon during his active duty tenure. 

7.  The DD Form 214 issued to the applicant upon his discharge also confirms he was separated under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in lieu of trial by court-martial, and that based on the authority and reason for his discharge, he was assigned a separation program designator (SPD) code of KFS in item 26 and an RE code of 4 in item 27 (Reentry Code).  

8.  The applicant provides four third-party statements from co-workers/friends who all attest to the fact that he is a dependable, responsible and hard working individual whom they would all strongly recommend for employment.  

9.  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, 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 UOTHC is normally considered appropriate.

10.  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.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the U.S. Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior-service applicants for enlistment.  This chapter includes a list of armed forces RE codes, including RA RE codes.  RE code of 4 applies to persons who are permanently disqualified for continued Army service.

11.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It states, in pertinent part, that the SPD code of KFS is the appropriate code to assign to Soldiers separated under the provisions of chapter 10, Army Regulation 635-200, in lieu of trial by court-martial.  The SPD/RE Code Cross Reference Table establishes RE code of 4 as the proper code to assign members separated with this SPD code.




DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contends that his RE coder of 4 should be changed to a more favorable RE code so that he may reenter the military.  He contends he was pushed through the separation process and he did not understand the seriousness of his separation proceedings or the RE code that he was assigned. 

2.  Both the applicant's contentions and the third-party statements that he provided were carefully considered.  However, these factors are not sufficiently mitigating to support granting the requested relief.

2.  The evidence of record confirms the applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  After consulting with defense counsel, he voluntarily requested discharge in lieu of trial by court-martial.  In doing so, he admitted guilt to the stipulated offense(s) under the UCMJ that authorized the imposition of a punitive discharge.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  By regulation, the RE code assigned to the applicant was the proper code to assign members separating under the provisions of chapter 10, Army Regulation 635-200, in lieu of trial by court-martial.  As a result, the RE code of 4 was correct and remains valid.

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, 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.

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)                                         AR20090014640



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ABCMR Record of Proceedings (cont)                                         AR20090014640


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