IN THE CASE OF:	  

		BOARD DATE:	  2 November 2010

		DOCKET NUMBER:  AR20100013846 


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 correction of his reentry eligibility (RE) code 4 to a more favorable code so he can enlist.

2.  The applicant states his current RE code prohibits enlistment.  He committed the offense leading to his discharge when he was a foolish, young man and would now like to fulfill his obligation to the Nation.

3.  The applicant provides a self-authored statement.

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 was born on 22 July 1982.  He enlisted in the Oregon Army National Guard (ORARNG) for a period of 8 years on 25 February 2005 at 22 years of age.  On 23 March 2005, he entered initial active duty for training, completed basic combat and advanced individual training, and was awarded military occupational specialty 19D (Cavalry Scout).

3.  On 27 March 2006, he was released from the ORARNG for the purpose of enlistment in the Regular Army.  On 28  March 2006, he enlisted in the Regular Army for a period of 3 years at 23 years of age.

4.  On 29 March 2006, he was reported absent without leave (AWOL) for failing to arrive at the U.S. Army Reception Battalion, Fort Jackson, SC, and he was subsequently dropped from the rolls of the Army on 28 April 2006.  He was returned to military control on 26 July 2006.

5.  On 3 August 2006, his command preferred court-martial charges against him for AWOL.

6.  On 3 August 2006, he 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, 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 (Active Duty Enlisted Administrative Separations).

7.  In his request for discharge, he indicated he was making the request of his own free will and he had not been subjected to any coercion whatsoever by any person.  He also indicated he understood that 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 were 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.

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

9.  On 3 August 2006, his first sergeant interviewed him in an attempt to determine the reason for his absence.  The applicant indicated he went AWOL for personal reasons and did not want to remain on active duty.

10.  On 26 September 2006, his immediate commander recommended approval of his request for discharge with the issuance of a discharge under other than honorable conditions.

11.  On 17 October 2006, his senior commander recommended approval of his request for discharge with the issuance of an uncharacterized discharge.

12.  On 25 October 2006, the separation authority approved his request for discharge in lieu of trial by court-marital in accordance with chapter 10 of Army Regulation 635-200 and directed that he be issued an uncharacterized discharge.

13.  On 28 November 2006, he was accordingly discharged.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he completed a total of 8 months and 2 days of creditable active military service and he had 119 days of lost time.  Item 26 (Separation Code) of this form shows the entry "KFS" and item 27 (Reentry Code) shows the entry "4."

14.  In a self-authored statement, the applicant states that he was young and made a foolish choice to go AWOL without regard for the future or for the implications of his actions.  His service in the ORARNG was good, he did not receive any Article 15's or negative counseling, and he participated in the Hurricane Katrina relief efforts.  He would now like to return to service in the ORARNG.

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides 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.

16.  Army Regulation 635-200 states 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, U.S. Army Reserve, and Army National Guard.  Table 3-1 includes a list of the Regular Army 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 the time of separation, but disqualification is waivable.  They are ineligible unless a waiver is granted.  An RE-4 applies to Soldiers separated from their last period of service with a nonwaivable disqualification.

17.  Army Regulation 635-5-1 (Separation Program Designator Codes (SPD)) states that SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  The SPD code "KFS" is the correct code for Soldiers separating under the provisions of chapter 10 of Army Regulation 635-200.  The SPD code "KFS" has a corresponding RE code "4."

 DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his RE-4 code should be corrected because he was young and foolish at the time of his service.

2.  Records show he was almost 24 years of age at the time of his offenses.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.

3.  His records show he was charged with the commission of an offense punishable under the Uniform Code of Military Justice 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.  Furthermore, his discharge accurately reflects his overall record of service.

4.  The evidence of record further confirms his 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 "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)                                         AR20100013846



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ABCMR Record of Proceedings (cont)                                         AR20100013846



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