BOARD DATE:	  28 April 2011

		DOCKET NUMBER:  AR20100025910 


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 a change to his reentry eligibility (RE) code from RE-4 to RE-3.

2.  The applicant states he was told he was going to be medically discharged due to problems he was having with his leg.  His drill sergeant punished him for missing formation and told him to pick up sand bags and move them.  He told his drill sergeant that he was not allowed to do that for medical reasons.  His drill sergeant dismissed the formation and demanded that he move the sandbags.  He was afraid of what might happen, so he left the barracks and did not return.  He was considered absent without leave (AWOL), but he returned after a year.  His leg has now healed and he is working fine with it.

3.  The applicant provides copies of chronological records of medical care.

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 enlisted in the Regular Army on 21 February 2006.  He completed basic combat training and he was reassigned to Fort Eustis, VA, for advanced individual training.  The highest rank/grade he attained during this period of military service was private/E-1.

3.  His medical records show in early June 2006 he was seen at the medical clinic for a closed fracture of the tibia.  The military physician discussed his diagnosis, medications, and treatment alternatives.  He was issued a temporary physical profile.

4.  On 18 June 2006, he departed his unit in an AWOL status and on 18 July 2006 he was dropped from the Army rolls as a deserter.  He was apprehended by civil authorities in New York City, NY, and returned to military control on 31 March 2007.  He was assigned or attached to Fort Knox, KY, for administrative action.

5.  On 5 April 2007, court-martial charges were preferred against the applicant for one specification of being AWOL from on or about 18 June 2006 to on or about 31 March 2007.

6.  On 5 April 2007, 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 (UCMJ), 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 (Personnel Separations).

7.  In his request for discharge, he indicated he was making this request of his own free will and he had not been subjected to any coercion whatsoever by any person.  He also indicated he understood 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 if the discharge request were approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  His request also stated, "Moreover, I hereby state that under no circumstances do I desire further rehabilitation, for I have no desire to perform further military service."

8.  On 26 April 2007, his immediate commander recommended approval of the applicant's discharge with the issuance of a discharge under other than honorable conditions.

9.  On 1 May 2007, the separation authority approved the applicant's voluntary request for discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 and directed he receive an discharge under other than honorable conditions and be reduced the lowest enlisted grade.  On 16 May 2007, the applicant was accordingly discharged.

10.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged for the good of the service in lieu of trial by court-martial with a character of service of under other than honorable conditions. 
This form further confirms he completed 5 months and 13 days of creditable active military service during this period and he had 285 days of lost time.  Item 26 (Separation Code) of this form shows the entry "KFS" and item 27 (Reentry Code) shows the entry "RE-4."

11.  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.

12.  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.

* 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
* 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
* RE-4 applies to Soldiers separated from their last period of service with a nonwaivable disqualification
13.  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 chapter 10 of Army Regulation 635-200.

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

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his RE-4 should be changed an RE-3.

2.  His records show he was charged with the commission of an offense punishable under the UCMJ 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.  Further, his discharge accurately reflects his overall record of service.  In addition, he stated in his request for discharge that under no circumstances did he desire to perform further military service.

3.  The evidence of record further confirms his RE code was assigned based on his separation under the provisions of chapter 10 of Army Regulation 635-200 for the good of the service in lieu of trial by court-martial.  The RE code associated with this type of discharge is RE-4.  Therefore, he received the appropriate RE code associated with his discharge.

4.  The medical profile he described is noted; however, there were other legitimate avenues he could have used to resolve these issues had he chosen to use them.  Nevertheless, his DD Form 214 shows the appropriate RE code and he did not submit any evidence that the RE code is in error or unjust.  Therefore, the applicant is not entitled to 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 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)                                         AR20100025910



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100025910



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1