BOARD DATE:	  8 February 2011

		DOCKET NUMBER:  AR20100019829


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, in effect, an upgrade of his reenlistment (RE) code from an RE code of 4 to a code that would enable him to reenlist.

2.  The applicant states, in effect, the Army Discharge Review Board (ADRB) felt he had been treated unfairly, upgraded his character of service from "other than honorable" to "under honorable conditions," and restored his previous rank.  

3.  The applicant provides a third-party letter of support from his mother,         Mrs. Priscilla L. D_____.

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 on 26 October 2005.  He completed training and was awarded military occupational specialty 92F (Petroleum Supply Specialist).  The highest rank/grade he attained while serving on active duty was private first class (PFC)/E3.

3.  On 1 March 2007, he failed to return from emergency leave, in order to avoid returning to his unit in Iraq, and was categorized as absent without leave (AWOL).  He remained AWOL until he returned to his unit's rear detachment element at Fort Bragg, NC on 6 March 2007.  On 7 March 2007, he was counseled by his commander, Captain (CPT) C_____, on the implications of missing movement and notified that he would be returned to the forward element of his unit, in Iraq, on a flight leaving on 29 March 2007.

4.  On 13 March 2007, he again went AWOL, in order to avoid returning to his unit in Iraq.  He missed his return flight to Iraq, scheduled for 29 March 2007, but returned to military control on 2 April 2007.  Upon being picked up from the military police station, he was again counseled by CPT C____ on the implications of missing movement.  

5.  On 2 April 2007, he again went AWOL, in order to avoid returning to his unit in Iraq, and remained AWOL until he was returned to military control on 11 April 2007.  He again missed his return flight to Iraq, scheduled for 11 April 2007.

6.  On 12 April 2007, court-martial charges were preferred against him for three specifications of violating Article 85 of the Uniform Code of Military Justice (UCMJ), specifically, for quitting his organization by failing to return to his forward deployed unit, with the intent to avoid hazardous duty, on 1 March, 13 March, and 2 April 2007.

7.  On 13 April 2007, he consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, he voluntarily requested discharge under the provisions of Army Regulation 635-200 (Enlisted Separations), chapter 10, for the good of the service - in lieu of trial by court-martial.

8.  In his request for discharge, he indicated he understood that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense, that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his 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. 

9.  On 7 June 2007, the separation authority approved his request for discharge and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.  On 27 June 2007, he was discharged accordingly.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he completed 1 year, 6 months, and 29 days of total active service during this period of active service, with 34 days of lost time.  Item 26 (Separation Code) shows "KFS" and item 27 (RE Code) shows "4."

10.  He provides a third-party letter on his behalf, from his mother who describes the circumstances behind her son's decisions to go AWOL.  She states her son was forced to deal with many issues in a short time, including the death of his grandmother, deployment to Iraq, the death of his brother, and his own injuries from combat in Iraq.  She states her son served his country as others would not, and he wants to continue to serve.  She closes by pleading for the applicant to be given a second chance to have the career he enjoys.  

11.  On 19 December 2008, the ADRB upgraded his character of service to "Under Honorable Conditions, General."  The ADRB did not change his RE code. It was determined that his RE code was proper and equitable.  Of note, the ADRB incorrectly states his RE code as "3" in paragraph VI (Facts, Circumstances, and Legal Basis for Separation), sub-paragraph c. (Response to Issues, Recommendation and Rationale) in the Case Report and Directive of
AR20080003715, dated 19 December 2008.

12.  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.  Prior to discharge or release from active duty, individuals are assigned RE codes based on their service records or the reason for discharge.  

13.  Army Regulation 601-210 (Active and Reserve Components 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 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 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.

14.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) 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 Army Regulation 635-200, chapter 10.

15.  The SPD/RE Code Cross Reference Table, dated 31 March 2005, provides instructions for determining the RE code for Active Army and Reserve Component Soldiers.  This cross reference table shows the SPD code and a corresponding RE code.  The SPD code of KFS has a corresponding RE code
of 4.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his RE code has been carefully considered; however, there is insufficient evidence to support his request.

2.  The evidence of record confirms his RE code was assigned based on the fact that he was separated 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 an RE code of 4; therefore, he received the appropriate RE code associated with his discharge.

3.  In view of the foregoing, there is no basis for granting the requested relief.

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)                                         AR20100017638



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ABCMR Record of Proceedings (cont)                                         AR20100019829



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