IN THE CASE OF:
BOARD DATE: 29 July 2010
DOCKET NUMBER: AR20100007037
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 an RE code that will allow him to reenter the U.S Army.
2. The applicant states he did not understand at the time.
3. The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 applicants 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 applicants 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 5 August 1997. He was discharged on 25 August 2000 under the provisions of Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), chapter 10, in lieu of trial by court-martial. He completed 2 years, 10 months, and 8 days of active military service with 73 days of lost time. His DD Form 214 shows he was assigned an RE code of 4 and a Separation Program Designator (SPD) code of "KFS" (In Lieu of Trial by Court-Martial).
3. 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.
4. 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 applicants 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 Army
Regulation 635-200, chapter 10."
5. The SPD/RE Code Cross Reference Table establishes RE code 4 as the proper reentry code to assign to Soldiers separated under the provisions of Army Regulation 635-200, chapter 10 in lieu of trial by court-martial.
6. 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. Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program), covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (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:
1. The applicants request that his RE code of "4" be changed so that he may reenter the military was considered; however, it does not serve as a basis to change a properly assigned RE code regardless of the Armys current enlistment policies.
2. The applicant's RE code is based on his narrative reason for separation and cannot be changed unless the applicant's narrative reason for separation is changed. His narrative reason for separation was based on his voluntary 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) AR20100007037
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