IN THE CASE OF:	  

		BOARD DATE:	  18 March 2010

		DOCKET NUMBER:  AR20090015135 


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 change of his reentry eligibility (RE) code on his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 30 June 2006.

2.  The applicant states that he was young at the time and now wants to do the right thing for himself and his family.  He would like to have his RE code changed to reenter the military to become a standout Soldier.

3.  The applicant provides no additional documentation in support of this 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 16 November 2006.  He successfully completed basic training; however, did not complete advanced individual training.

3.  A DD Form 458 (Charge Sheet), dated 14 March 2006, shows charges were preferred against the applicant on 17 March 2006 for being absent without (AWOL) from on or about 4 January 2006 until on or about 14 March 2006.

4.  On 17 March 2006, after consulting with counsel, the applicant voluntarily submitted a request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), chapter 10.  The applicant indicated in his request that he understood he could be discharged under other than honorable conditions, that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration, and that he may be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he may expect to encounter substantial prejudice in civilian life.  He elected not to provide statements in his own behalf.

5.  On 10 June 2006, the appropriate authority approved the applicant's request for discharge for the good of the service.  He directed that the applicant be issued an under other than honorable conditions discharge.

6.  On 30 June 2006, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, with service characterized as under other than honorable conditions.  He completed 5 months and 4 days of creditable active service with 71 days of lost time due to AWOL.  The applicant's DD Form 214 shows in item 26 (Separation Code) the entry "KFS" and in item 27 (Reentry Code) the entry "4."

7.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 4 February 2009, the ADRB reviewed and denied the applicant's request for upgrade.  The ADRB determined that the applicant's discharge was proper and equitable and that the reason for discharge and characterization of his discharge was proper as under other than honorable conditions. 

8.  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.

9  Army Regulation 635-5-1 (Separation Program Designator (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. The SPD code of KFS was the appropriate code for the applicant based on the guidance provided in this regulation for Soldiers separating under the provisions of Army Regulation 635-200, chapter 10, by reason of in lieu of trial by court-martial.  Additionally, the SPD/RE Code Cross Reference Table establishes 
RE-4 as the proper reentry code to assign to Soldiers with an SPD of KFS.

10.  Army Regulation 635-200 further 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-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army.  They are qualified for enlistment if all other criteria are met.

	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.

DISCUSSION AND CONCLUSIONS:

The applicant contends that he needs his RE-4 code changed on his DD Form 214 in order to reenter the military.  However, the ABCMR does not change records solely to allow former Soldiers to reenter the service.  The evidence of record confirms that the applicant’s separation processing was accomplished in accordance with the applicable regulations to include the RE-4 code assignment.  Lacking independent evidence to the contrary, it is determined that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Therefore, the assigned RE-4 code was appropriate.

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)                                         AR20090015135



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ABCMR Record of Proceedings (cont)                                         AR20090015135



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