BOARD DATE:	  20 July 2010

		DOCKET NUMBER:  AR20100000024 


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 discharge under other than honorable conditions be upgraded.  He also requests his reentry eligibility (RE) code be changed so he can enlist.

2.  The applicant states:

* recently he reviewed his records and noticed his reason for discharge was incorrect
* he believes there are numerous inaccuracies and would like his discharge upgraded
* he would like his RE code changed so he can enlist
* since his discharge he has tried to be active with the military by helping convince young people in his community to join the Army

3.  The applicant provides a letter of recommendation from a college professor 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 1 May 2002 for a period of 4 years.

3.  The applicant went absent without leave (AWOL) on 15 June 2002 and he returned to military control on 13 November 2002.  Charges were preferred against the applicant for the AWOL period and trial by special court-martial was recommended.

4.  On 5 December 2002, the applicant consulted with counsel and requested discharge in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  He indicated in his request that he understood he might be discharged under conditions other than honorable and furnished an other than honorable conditions discharge, that he might be ineligible for many or all benefits administered by the Department of Veterans Affairs, that he would be deprived of many or all Army benefits, and that he might be ineligible for many or all benefits as a veteran under both Federal and State laws.  He acknowledged that he might expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.  He elected not to make a statement in his own behalf.  

5.  On 31 March 2003, the separation authority approved the applicant's request for discharge and directed that he be furnished a discharge under other than honorable conditions.

6.  Accordingly, the applicant was discharged under other than honorable conditions on 30 April 2003 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He had served 6 months and 28 days of creditable active service with 153 days of lost time due to AWOL.

7.  Item 25 (Separation Authority) of the applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the entry "Army Regulation 
635-200, chapter 10."  Item 26 (Separation Code) shows the entry "KFS."  Item 27 (Reentry Code) shows the entry "4."  Item 28 (Narrative Reason for Separation) shows the entry "in lieu of trial by court-martial."

8.  In support of his claim, the applicant provided a letter of recommendation for employment from his college professor.

9.  On 11 February 2009, the Army Discharge Review Board denied the applicant's request for an honorable discharge.

10.  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.

11.  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.

12.  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.

13.  Army Regulation 635-5-1 (Separation Program Designator 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 states the reason for discharge based on separation code KFS is "in lieu of trial by court-martial" and the regulatory authority is Army Regulation
635-200, chapter 10.

14.  Army Regulation 635-200 states 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 and the U.S. Army Reserve.  Table 3-1 includes a list of the Regular Army RE codes:

	a.  RE-4 applies to Soldiers who are separated from their last period of service with a nonwaivable disqualification.  They are ineligible for enlistment.

	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-1 applies to persons completing an initial term of active service who were fully qualified when last separated.

15.  The Separation Program Designator Code/Reentry Code Cross Reference Table, dated 31 March 2003, shows that Soldiers given a separation program designator of KFS will be given an RE code of 4.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial was administratively correct and in conformance with applicable regulations.  He had an opportunity to submit a statement in which he could have voiced his concerns; however, he elected not to do so.

2.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

3.  The applicant's brief record of service included 153 days of lost time.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge or a general discharge.

4.  The applicant's RE code was administratively correct and in conformance with applicable regulations at the time of his separation.  Therefore, there is no basis for granting the applicant's request to change his RE code.



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)                                         AR20100000024



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ABCMR Record of Proceedings (cont)                                         AR20100000024



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