IN THE CASE OF:
BOARD DATE: 31 March 2011
DOCKET NUMBER: AR20100022751
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 so he will be allowed to enlist in the Army.
2. The applicant states he made a stupid mistake by being absent without leave (AWOL) for 34 days after he returned from Iraq. Since his unit was inactivating, he was put out of the service with an RE code of 4. He wants a second chance to serve.
3. The applicant did not provide any additional evidence.
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 available records show he enlisted in the Regular Army on 4 January 2004.
3. The applicant was AWOL from 6 September 2006 until 18 October 2006.
4. Charges were preferred on 19 October 2006 for the AWOL period.
5. On 27 December 2006, the applicant's request for discharge in lieu of trial by court-martial was approved. The commander directed the issuance of a discharge under other than honorable conditions.
6. On 26 January 2007, the applicant was discharged in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10. Accordingly, he was given a separation program designator (SPD) code of KFS and an RE code of 4. His character of service was under other than honorable conditions.
7. Army Regulation 601-210 (Active and Reserve Components Enlistment Program) prescribes eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army, U.S. Army Reserve, and Army National Guard. Chapter 3 prescribes basic eligibility for prior-service applicants for enlistment and includes a list of Armed Forces RE codes. RE code 4 applies to persons separated from their last period of service with a non-waivable disqualification. This regulation further provides that RE codes may only be changed if they are determined to be administratively incorrect.
8. Army Regulation 635-5-1 (SPD Codes) provides the specific authorities and reasons for separating Soldiers from active duty and the SPD codes to be entered on the DD Form 214. The SPD code of KFS was the appropriate code based on the guidance provided in this regulation for Soldiers separating under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. Additionally, the SPD/RE Code Cross Reference Table establishes RE code 4 as the proper RE code to assign to Soldiers for this reason.
DISCUSSION AND CONCLUSIONS:
1. The applicant requests that his RE code 4 be changed so he may be allowed to enlist in the Army.
2. The RE code 4 establishing his ineligibility for enlistment/reenlistment was correctly entered on his separation document in accordance with governing regulations.
3. There is no apparent basis for removal or waiver of the applicant's disqualification that established the basis for the RE code 4. While the applicant's desire to serve his country is commendable, there are no provisions authorizing the change of an RE code for this purpose.
4. In view of the foregoing, there is no basis for granting the applicant's request.
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 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) AR20100010153
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ABCMR Record of Proceedings (cont) AR20100022751
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