IN THE CASE OF:
BOARD DATE: 28 September 2010
DOCKET NUMBER: AR20100011042
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 his separation code and reentry (RE) code be changed.
2. The applicant states:
* He had honorable service and heroic actions in service to the United States of America during the war on global terrorism
* He was awarded the Purple Heart
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 16 October 2001 and trained as a field artillery surveyor specialist. He served in Iraq from 6 May 2003 to 24 April 2004 and was awarded the Purple Heart.
3. All the facts and circumstances surrounding the applicants discharge are not contained in the available records. The charge sheet is not available. However, his records contain a request for discharge in lieu of trial by court-martial dated 14 October 2004. This request shows the applicant was charged with being absent without leave, willfully disobeying a superior commissioned officer, insubordination towards a noncommissioned officer, assault, being drunk and disorderly, and breaking restriction. On 19 October 2004, the separation authority approved the applicant's request for discharge. He was discharged on 28 October 2004 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 had served a total of 3 years and 12 days of creditable active service.
4. The applicant's DD Form 214 shows the following:
* Item 25 (Separation Authority) shows the entry "AR [Army Regulation] 635-200, CHAP [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"
5. On 16 May 2008, the Army Discharge Review Board (ADRB) upgraded the applicant's discharge under other than honorable conditions to an honorable discharge. The ADRB determined that the reason for discharge was proper and equitable and voted not to change it.
6. Army Regulation 635-5-1 (Separation Program Designator (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 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.
7. 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 RA and the U.S. Army Reserve (USAR). Table 3-1 included a list of the RA 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.
8. The SPD/RE Code Cross Reference Table, dated 15 June 2006, shows that Soldiers given an SPD code of "KFS" will be given an RE code of "4."
DISCUSSION AND CONCLUSIONS:
The applicant's contentions were carefully considered. However, given the fact he was discharged in lieu of trial by court-martial, he was given the proper 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.
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