IN THE CASE OF:	  

		BOARD DATE:	  13 April 11

		DOCKET NUMBER:  AR20100024089


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 the reentry (RE) code on his DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed to a "3 or 2 or 1."

2.  The applicant states he was young and not as prepared as other Soldiers to meet the demands of military service.  He is older now and he wants to re-enter the Army and restore his honor.

3.  The applicant provides a copy of his DD Form 214.

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 was born on 20 November 1981 and he enlisted in the US Army Reserve (USAR) on 1 October 1998; he was 17 years, 10 months old.

3.  He entered on Initial Active Duty for Training (IADT) on 1 June 1999; he was 18 years, 6 months old.

4.  The applicant was absent without leave (AWOL) from on or about 6 June 2000 to on or about 25 June 2000, and from on or about 29 June 2000 to on or about 20 November 2000.

5.  On 22 November 2000, court-martial charges were preferred against him and, after consulting with legal counsel, he requested separation for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200.  In so doing, he acknowledged that he was guilty of the charges against him, charges which authorized the imposition of a bad conduct or dishonorable discharge.  He also stated that he had no desire for rehabilitation or further military service, and that he understood the nature and consequences of the undesirable discharge that he might receive.  He declined to submit a statement in his own behalf.

6.  The applicant was placed on excess leave on 22 November 2000 pending final action on his request for discharge.  On 7 August 2001, the approving authority accepted his request and approved discharge with an under other than honorable conditions (UOTHC) discharge.  The authority for discharge was Army Regulation 635-200, chapter 10 and the narrative reason was "in lieu of trial by court-martial."  He was given a separation program designator (SPD) code of KFS and an RE code of 4.

7.  The applicant petitioned the Army Discharge Review Board (ADRB) seeking a discharge upgrade.  The ADRB, after considering his case on 30 October 2002, denied his request.

8.  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 at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A UOTHC discharge is normally considered appropriate.

9.  Army Regulation 635-5-1 (SPD Codes) states that the SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty. The primary purpose of SPD codes is to provide statistical accounting of reasons for separation.  They are intended exclusively for the internal use of the Department of Defense and the Military Services to assist in the collection and analysis of separation data.  The SPD code of "KFS" is the correct code for Soldiers separating under the provisions of Army Regulation 635-200, chapter 10 by reason of in lieu of trial by court-martial.

10.  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 corresponding RE code.  The SPD code of "KFS" has a corresponding RE code of 4.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests a change in his RE code so he might re-enter the Army.

2.  The applicant entered IADT when he was 18 years, 6 months old.  He was as old or older than the majority of his fellow Soldiers entering on active duty.  Unlike those other Soldiers, the applicant did not like military life and went AWOL twice.  Upon his return, he faced court-martial charges which could have resulted in a Federal conviction and a bad conduct or dishonorable discharge.

3.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.  His request for a chapter 10 discharge, even after appropriate and proper consultation with a military lawyer, tends to show he wished to avoid the court-martial conviction and the punitive discharge that he might have received. 

4.  The applicant was discharged under Army Regulation 635-200, chapter 10 by reason of in lieu of trial by court-martial.  The appropriate SPD code is "KFS" and the corresponding RE code is 4.  The applicant's DD Form 214 is correct; there is no error.

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)                                         AR20100024089





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ABCMR Record of Proceedings (cont)                                         AR20100024089



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