IN THE CASE OF:	  

		BOARD DATE:	  10 November 2010

		DOCKET NUMBER:  AR20100013611 


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 assigned reentry eligibility (RE) code of 4 be changed to a 1 or 3 so he can reenlist.

2.  The applicant states, in effect, he believes his RE code is unjust because he has truly come to understand his errors in judgment that led to his discharge.  He does not believe he would make the same mistake if given a second chance.  He just wants the opportunity to do the right thing for his country.

3.  The applicant provides a statement of support from his pastor.

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 records show he enlisted in the Regular Army (RA) on 5 June 2001 and held military occupational specialty 11B (Infantryman).  His records also show subsequent to completion airborne training, he was assigned to Headquarters and Headquarters Company, 3rd Battalion, 505th Infantry, Fort Bragg, NC.

3.  On 6 January 2004, he departed his unit in an absent without leave (AWOL) status and he was subsequently dropped from the rolls of the Army on 5 February 2004.  He returned to military control on 30 June 2004.

4.  On 7 July 2004, his command preferred court-martial charges against him for one specification of being AWOL from on or about 6 January to 30 June 2004.

5.  He subsequently consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations).

6.  In his request for discharge, he indicated that he was making this request of his own free will and he had not been subjected to any coercion whatsoever by any person.  He also indicated that he understood by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offense, that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions.  He further acknowledged he understood that if the discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  

7.  In his request, he further indicated that he did not desire a physical evaluation prior to separation.  His request also stated, "Moreover, I hereby state that under no circumstances do I desire further rehabilitation, for I have no desire to perform further military service."

8.  On 7 July 2004, the applicant's company and battalion commanders approved his request with the issuance of an under other than honorable conditions discharge.
9.  On 16 July 2004, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200 and directed that he be reduced to the lowest enlisted grade and issued an under other than honorable conditions discharge.

10.  On 6 August 2004, he was accordingly discharged.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he completed 2 years, 8 months, and 5 days of creditable active military service and he had 174 days of lost time.  Item 26 (Separation Code) of this form shows the entry "KFS" and item 27 shows the entry "4." 

11.  He submitted a statement, dated 28 March 2010, from his pastor who states he has known the applicant as a friend and colleague.  He attests the applicant has shown remorse for his actions and he has learned to become a team player.

12.  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.

13.  Army Regulation 635-200 provides, 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 (RA and Army Reserve Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the US Army Reserve. Table 3-1 includes a list of the RA Reenlistment Eligibility Codes (RE codes).  An 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.  An 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.  An RE-4 applies to Soldiers separated from last period of service with a nonwaivable disqualification.




14.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states SPD codes are three-character alphabetic combinations which identify reasons for, and types of, separation from active duty.  The "KFS" SPD code is the correct code for Soldiers separating under chapter 10 of Army Regulation 635-200.  

15.  The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers.  This cross reference table shows the SPD code and a corresponding RE code.  At the time of his discharge, the SPD code of "KFS" had a corresponding RE code of "4."

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his RE code of 4 should be upgraded to an RE code of 1 or 3 so he can reenlist.

2.  The applicant’s records show 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.  He voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.  In addition, he stated in his request for discharge that under no circumstances did he desire to perform further military service.

3.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  The applicant's RE code was assigned 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.  The RE code associated with this type of discharge is a 4.  Therefore, he received the appropriate RE code associated with his discharge.

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)                                         AR20100013611



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ABCMR Record of Proceedings (cont)                                         AR20100013611



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