BOARD DATE:	  February 25, 2010

		DOCKET NUMBER:  AR20090016680 


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, an upgrade of his reentry eligibility (RE) code from an RE code of 4 to an RE code of 1 so that he may reenter the U.S. Armed Forces.

2.  The applicant states, in effect, that he made a mistake when he went absent without leave (AWOL) to tend to his father who was seriously ill with cancer.  He returned to his unit and requested a discharge, but left again before the action was completed to help his ill father.  He states that his father died in 2003 and that he now would like to enlist in the Armed Forces and serve his country.  

3.  The applicant did not provide any supporting documents with 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 Army Reserve on 17 February 1999 in the Delayed Entry Program.  He enlisted in the Regular Army (RA) on 18 March 1999.  Records show he completed basic combat training. 

3.  On 7 February 2000, court-martial charges were preferred against the applicant for two specifications of being absent without leave (AWOL). 

4.  On 10 February 2000, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  The applicant then voluntarily requested discharge for the good of the service in lieu of trial by court-martial.

5.  In his request for discharge, the applicant indicated he understood that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser-included offense, that also authorized the imposition of a bad conduct or dishonorable discharge.  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 (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He elected not to submit statements on his own behalf and acknowledged that he received a copy of his request for discharge to include all enclosures.

6.  On 22 June 2000, the applicant's company commander recommended that the applicant be discharged in lieu of trial by court-martial.  The commander stated that based on the applicant's previous record, she expected minimal rehabilitative effects and believed a discharge would be best for all concerned.  She further recommended discharge under other than honorable conditions

7.  On 20 July 2000, the separation authority approved the applicant’s discharge under the provisions of chapter 10 of Army Regulation 635-200 by reason of conduct triable by court-martial and directed that he be reduced to the lowest enlisted rank and issued an under other than honorable conditions discharge.

8.  Accordingly, the applicant was discharged on 7 August 2000.  The DD Form 214 he was issued confirms he was discharged with a character of service of under other than honorable conditions.  Item 12c of this form further shows that he completed a total of 9 months and 2 days of active military service.  Item 26 (Separation Code) shows the entry "KFS," and item 27 (Reentry Code) shows the entry "4."  He had 226 days of lost time under the provisions of Title 10, U.S. Code, Section 972.

9.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the administrative separation of enlisted personnel.  Chapter 10 of this regulation provides, in pertinent part, that a member who had committed an offense or offenses for which the authorized punishment included 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.  The request must include the Soldier's acknowledgement that the Soldier understood the elements of the offense(s) charged and that the Soldier was guilty of the charge(s) or of a lesser included offense therein contained which also authorized the imposition of a punitive discharge.  A discharge under other than honorable conditions was normally considered appropriate.

10.  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.  

11.  Army Regulation 601-210 (RA and Army Reserve Enlistment Program), covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the USAR.  RE codes are used for administrative purposes and are not to be considered derogatory in nature.  Simply, the RE codes are used for identification of an enlistment processing procedure.  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 the time of separation, but the disqualification is waivable.  They are ineligible for enlistment unless a waiver is granted. 

	c.  RE-4 applies to Soldiers separated from their last period of active service with a nonwaivable disqualification.

12.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides, in pertinent part, that the reasons for separating Soldiers from active duty and their corresponding SPD codes will be entered on the Soldiers' DD Forms 214.  It states, in pertinent part, that the SPD code “KFS” is the appropriate code to assign to Soldiers who request discharge in lieu of trial by court-martial.  

13.  The SPD/RE Code Cross-Reference Table, in effect at the time, shows the appropriate RE code for the SPD code of "KFS" is an RE code of 4. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his RE code should be upgraded to a more favorable code so he can enlist in the Armed Forces.
   
2.  The evidence of record shows the applicant's RE code was assigned based on his discharge under the provisions of chapter 10 of Army Regulation 635-200 due to conduct triable by court-martial, specifically two periods of AWOL totaling 226 days.  The only valid SPD codes permitted for chapter 10 is "KFS" and the appropriate RE code associated with this type of SPD code at the time of his discharge was an RE code of 4.  This RE code is still appropriate.

3.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  In order to justify correction of a military record, the applicant must show, 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.  Therefore, he is not entitled to relief.  

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)                                         AR20090016680



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ABCMR Record of Proceedings (cont)                                         AR20090016680



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