IN THE CASE OF:	  

		BOARD DATE:	  1 February 2011

		DOCKET NUMBER:  AR20100019192 


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 reentry (RE) code be changed so he can enlist.

2.  The applicant states:

* He does not believe he should have been released from the service the way he was
* He should have been transferred from Germany to another duty station
* He was charged with negligent homicide, fatal traffic accident, and traffic violations on 31 March 1992 in Germany
* He contends he was driving behind a truck and did not see the biker, when the truck passed the biker it pulled the biker into the lane, he struck the biker with his bumper, and the biker died at the scene   

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 Regular Army on 19 January 1982 and trained as a motor transport operator and remained on active duty through continuous reenlistments.  He was promoted to staff sergeant on 1 May 1989.  

3.  The charge sheet is not available.  

4.  On 1 September 1992, the applicant consulted with counsel and requested a conditional request for discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10 provided he receive a general discharge.  He indicated in his request that if his request was accepted he would be discharged under honorable conditions, that he might be ineligible for many or all benefits administered by the Department of Veterans Affairs, that he would be deprived of many or all Army benefits, and that he might be ineligible for many or all benefits as a veteran under both Federal and State laws.  He also acknowledged that he might expect to encounter substantial prejudice in civilian life because of a general discharge.  He elected to make a statement in his own behalf.  In summary, he stated he was deeply sorry for the tragic death of a male civilian, since the accident he has been under a tremendous amount of stress and emotional strain, his duty performance for 
10 years has been excellent, he learned a great deal from the tragic accident, and it is with great regret he makes this request for a conditional chapter 10 discharge in lieu of court-martial.  

5.  On 8 September 1992, the separation authority approved the applicant's request for discharge and directed that he be furnished a general discharge.

6.  He was discharged under honorable conditions (a general discharge) on 
20 November 1992 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He had served a total of 10 years, 10 months, and 2 days of active service.

7.  Item 25 (Separation Authority) of the applicant's DD Form 214 shows the entry "AR [Army Regulation] 635-200, CHAPTER 10."  Item 26 (Separation Code) of his DD Form 214 shows the entry "KFS."  Item 27 (Reentry Code) on his DD Form 214 shows the entry "3."  Item 28 (Narrative Reason for Separation) of his DD Form 214 shows the entry "FOR THE GOOD OF SERIVCE - IN LIEU OF COURT-MARTIAL."

8.  Army Regulation 635-5-1 (Separation Program Designator 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.

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 (Regular Army and Army Reserve Enlistment Program), covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the U.S. Army Reserve.  Table 3-1 included a list of the Regular Army RE codes.

	a.  RE-3 applies to persons who are not qualified for continued Army service, but the disqualification is waivable.

	b.  RE-1 applies to persons completing an initial term of active service who were fully qualified when last separated.

10.  The Separation Program Designator Code/Reentry Code Cross Reference Table, dated 2 October 1989, shows that Soldiers given a separation program designator of "KFS" would be given an RE code of 3.

DISCUSSION AND CONCLUSIONS:

The applicant has not submitted any evidence that would warrant a change to his RE code.  His RE code was administratively correct and in conformance with applicable regulations at the time of his separation.  Therefore, there is no basis for granting the applicant's request to change 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)                                         AR20100019192



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100019192



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1