IN THE CASE OF:	  

		BOARD DATE:	  14 September 2010

		DOCKET NUMBER:  AR20100009920 


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 a change to her reentry eligibility (RE) code from RE-4 to RE-3 in order to be able to reenter the Army.

2.  The applicant states it has been over 3 years since she was discharged and she is older and wiser now.  She has learned from her mistakes and she would like the Board to consider changing her RE code.  She contends she would like a fighting chance to go back in the Army.  The Army changed her life and she would love to do the same for her country.

3.  The applicant provides a copy of the "Clean Lifestyle is Freedom Forever (CLIFF) Therapeutic Communities" program and a self-authored statement, dated 19 February 2010. 

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 U.S. Army Reserve (USAR) for a period of 8 years on 28 October 2005, under the Delayed Entry Program (DEP).  On 9 November 2005, she was discharged from the USAR DEP and she enlisted in the Regular Army (RA) on 10 November 2005 for a period of 3 years.

3.  A copy of a DD Form 458 (Charge Sheet) dated 18 May 2006 shows the applicant was charged with violation of Article 86, Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) during the period 4 April 2006 to 14 May 2006.  After consulting with legal counsel, the applicant voluntarily requested discharge in lieu of trial by court-martial.

4.  On 10 August 2006, the separation authority approved the applicant's request for discharge 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 separation authority directed the applicant's discharge with an under other than honorable conditions discharge and reduction to the lowest enlisted grade.

5.  Accordingly, the applicant was discharged on 23 August 2006.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) she was issued shows she was discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  It shows her character of service as under other than honorable conditions.  It also shows she was issued a separation code of "KFS" and an RE code of "4."

6.  The applicant submitted a copy of the CLIFF Therapeutic Communities program and a self-authored statement.  She states she is participating in this program while she is in prison.  She is half-way through her treatment program and she also participates in the "90 meetings in 90 days program."  She thinks this information would be helpful in the Board's decision for her enlistment in the Army.

7.  She contends she had some personal issues which prevented her from making the right decisions about her future.  She got into trouble while she was out and now she is paying for those mistakes.  She believes she is a great person and deserves at least a chance to plead her case to reenter the Army.  She provides that it has been over 3 years since her discharge and since her original enlistment.  She believes she has grown in those years.  She has lost a lot since her discharge and she is now trying to regain her life back with some dignity.  She still wants to be part of the Army.
8.  She states she wants to serve her country and no matter how hard; she must try to do that.  She is in the CLIFF program working her way to recovery and trying to better her life.  She contends that mistakes are not what define a person but the choice to do better and the drive to move forward.  She asked to go to prison for her own good because she knew she would continue to make mistakes if she did not.  She requests the Board not to judge her on past mistakes but on her future and how she wants to change her life.  

9.  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 (Active and Reserve Components 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-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. 

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

10.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that separation codes are three-character alphabetic combinations, which identify reasons for, and types of separation from active duty.  The primary purpose of a separation code is to provide statistical accounting of reasons for separation.  They are intended exclusively for the internal use of DOD and the military services to assist in the collection and analysis of separation data.  It notes that "KFS" is the appropriate separation code for individuals separated in lieu of trial by court-martial.

11.  Army Regulation 635-5-1 provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the separation codes to be entered on the DD Form 214.  It states, in pertinent part, that SPD "KFS" is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  The SPD/RE Code Cross Reference Table indicates that RE code 4 is the proper code to assign members separated with a separation code of "KFS."




DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to change her RE code from RE-4 to RE-3 in order to be able to reenlist in the Army was carefully considered; however, it is not supported by the evidence provided.

2.  The evidence shows the applicant had lost time due to AWOL.  Upon her return to military control, court-martial charges were preferred against her.  Rather than face a court-martial for this unauthorized absence, she submitted a request for voluntary separation under the provisions of Army Regulation
635-200, chapter 10, in lieu of trial by court-martial.

3.  The applicant's voluntary request for discharge was approved and the type of discharge directed and the reason for her discharge were appropriate considering all of the facts of the case.

4.  When discharged, the DD Form 214 she was issued showed she was discharged under the provisions of Army Regulation 635-210, chapter 10, in lieu of trial by court-martial.  The SPD code of "KFS" and the associated RE code of "4" were properly applied to her DD Form 214.

5.  RE code "4" is consistent with the authority and reason for her separation as well as the issued SPD code of "KFS."  Therefore, there is no basis for granting the applicant's requested 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)                                         AR20100009920



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100009920



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1