IN THE CASE OF:	  

		BOARD DATE:	  19 October 2010

		DOCKET NUMBER:  AR20100012973 


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 Eligibility (RE) code be changed from "4" to a code that will allow him to reenter the military.

2.  The applicant states, in effect, he and his soon to be wife enlisted in the Army under the assumption they would be assigned to the same command upon completion of basic and advanced individual training once they married.  However, she was sent overseas and he remained in a holding company at Fort Benning, GA.  As a result, he decided that going absent without leave (AWOL) was the only resolution he had because some of the members of his unit had been waiting a year for orders.  This cost him his Army career and his marriage.  He has inquired about this matter through his Congressional Representative because the local recruiting office has not helped him.  He concludes by stating he is not asking for an upgrade of his discharge, just that his RE code be changed so he can have another opportunity to serve his country. 

3.  The applicant provides in support of his application his DD Form 214 (Certificate or Release or Discharge from Active Duty) and his final order of divorce, dated 18 December 2003, which shows he and his wife were divorced on 17 December 2003. 

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’s record shows he enlisted in the Regular Army (RA) on
18 March 1999.  

3.  The applicant's Charge Sheet, dated 27 October 1999, shows he was charged with being AWOL on 22 September 1999.

4.  The applicant's DD Form 616 (Report of Return of Absentee), dated 
25 January 2000, shows he was apprehended on 25 January 2000.

5.  The specific facts and circumstances surrounding the applicant’s discharge processing are not available for review.  However, the available evidence includes a properly-constituted DD Form 214 that contains the authority and reason for the applicant’s discharge.  The DD Form 214 shows he was discharged on 29 March 2001 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of court-martial.  He was issued an under other than honorable conditions discharge and assigned a RE-code of "4" and a separation code of "KFS."  The DD Form 214 he was issued confirms he completed a total of 1 year, 8 months, and 7 days of total active service and he had 125 days of lost time.  

6.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred,.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of Department of Veterans Affairs benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An under other than honorable discharge certificate would normally be furnished an individual who was discharged for the good of the Service.

7.  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 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing individuals into the RA and the U.S. Army Reserve.  Chapter 3 of this regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of armed forces RE codes, including RA RE codes.  RE-4 applies to persons who are permanently disqualified for continued Army service.

8.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  The SPD code of "KFS" is the appropriate code to assign Soldiers separated under the provisions Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  The SPD/RE Code Cross-Reference Table also shows the corresponding RE code for the SPD code of "KFS" is "RE-4."

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his assigned RE code of 4 should be upgraded to a favorable code that would allow him to reenter the military.

2.  The available evidence shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial. 

3.  The applicant was assigned an RE code of "4" based on the fact that he was discharged under the provisions of chapter 10 of Army Regulation 635-200, in lieu of trial by court-martial.  An RE code of "4" applies to persons who are permanently disqualified for continued Army service.  By regulation, the code assigned to the applicant was and still is the proper code.

4.  The applicant has failed to submit evidence sufficient to establish a basis for changing 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)                                         AR20100012973



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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