BOARD DATE:	  1 June 2010

		DOCKET NUMBER:  AR20090018711 


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 that his Reentry (RE) code of RE-4 and his character of service be changed.

2.  The applicant states that his RE code prevents his reenlistment.  He states that he deserted his duties when his platoon sergeant wanted to know why he was receiving extra money even though was married and entitled to it, so he went absent without leave (AWOL).  He also states that he was 21 years old at the time but is now 32 years old and a full time college student.  He concludes by stating that he was immature at the time but has learned his lesson and is willingly to accept his punishment if his RE code and character of service changed so he can reenlist in the National Guard or Reserve.  

3.  The applicant provides no additional documents 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 enlisted in the Regular Army on 25 August 1998 at 21 years of age.  

3.  The applicant's DD Form 458 (Charge Sheet), dated 7 November 2000, shows he was charged with being AWOL from 6 September to 2 November 2000.

4.  On 9 November 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 UCMJ, the possible effects of an undesirable discharge, and of the procedures and rights that were available to him.  Subsequent to receiving legal counsel, the applicant 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 a 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 further acknowledged he understood that if his discharge request were 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 laws.

6.  On 7 August 2001, the separation authority directed that the applicant be separated under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial, with an under other than honorable conditions character of service.  On 7 September 2001, the applicant was discharged accordingly.  His DD Form 214 shows he was issued an RE code of RE-4.  The DD Form 214 also confirms he completed a total of 2 years, 1 month, and 27 days of creditable active service with 56 days of time lost.

7.  On 22 July 2002, the Army Discharge Review Board denied the applicant's request to change the character of his discharge.

8.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

9.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

10.  Army Regulation 635-5-1 (SPD Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons.  The regulation shows that the separation program designator “KFS” as shown on the applicant’s DD Form 214 specifies the narrative reason for discharge as “In Lieu of Trial by Court-Martial” and that the authority for discharge under this separation program designator is “AR 635-200, chapter 10."  

11.  Table 2-3 (SPD/RE Code Cross Reference Table), Army Regulation 635-5 (Separation Documents) establishes RE code 4 as the proper reentry code to assign to Soldiers separated under the provisions of AR 635-200, chapter 10 in lieu of trial by court-martial.  
  
12.  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 covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the U.S. Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of armed forces RE codes.

13.  RE code 4 applies to persons not qualified for continued Army service and the disqualification is not waivable.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states he made a mistake by going AWOL, but he was young and immature.  However, age is not sufficiently mitigating to warrant relief in this case.  

2.  The applicant voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid a trial by court-martial.  He acknowledged he understood that he could be ineligible for many or all benefits administered by the VA and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  There is no indication that the request was made under coercion or duress.

3.  The applicant’s record of indiscipline includes 56 days AWOL.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to a general under honorable conditions or an honorable discharge.

4.  The applicant’s request that his RE code of "4" be changed so that he may serve his country again was considered; however, it does not serve as a basis to change a properly assigned RE code regardless of the Army’s current enlistment policies.

5.  The applicant's RE code is based on his reason for discharge and cannot be changed unless the applicant's narrative reason for discharge is changed.  His narrative reason for discharge was based on his request for discharge in lieu of trial by court-martial and there is no basis upon which this reason should be changed.  In view of the foregoing, there is no basis for granting relief to the applicant 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)                                         AR20090018711



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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