IN THE CASE OF:	  

		BOARD DATE:	  27 July 2011

		DOCKET NUMBER:  AR20110000812 


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 eligibility (RE) code be changed to RE 3
* his discharge under other than honorable conditions be upgraded to general under honorable conditions
* award of the "Kosovo Peace-Keeping Force (KFOR) Badge" and Army Commendation Medal (ARCOM)

2.  The applicant makes no statement.

3.  The applicant provides a character reference letter.

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.  Table 8-1 (U.S. Army Badges and Tabs) of Army Regulation 600-8-22 (Military Awards) does not list the "KFOR Badge" as an authorized badge.  Therefore, this portion of the applicant's request will not be discussed further in these proceedings.

3.  He enlisted in the Regular Army on 15 March 2000 for a period of 3 years.  He completed his training and was awarded military occupational specialty 13B (cannon crewmember).

4.  On 22 March 2002, the applicant absented himself from his unit with intent to remain away permanently and remained so absent in desertion until 22 May 2002.  Charges were preferred against the applicant for desertion.

5.  He consulted with counsel and requested discharge in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  He indicated in his request that he understood he might be discharged under conditions other than honorable and furnished an other than honorable conditions discharge, he might be ineligible for many or all benefits administered by the Department of Veterans Affairs, he would be deprived of many or all Army benefits, and he might be ineligible for many or all benefits as a veteran under both Federal and State laws.  He acknowledged he might expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.  He elected not to make a statement in his own behalf.

6.  On 20 June 2002, the separation authority approved the applicant's request for discharge and directed that he be furnished a discharge under other than honorable conditions.

7.  He was discharged under other than honorable conditions on 2 July 2002 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He completed 2 years, 1 month, and 17 days of creditable active service with 61 days of lost time.

8.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) does not show the ARCOM as an authorized award.  Item 25 (Separation Authority) of the applicant's DD Form 214 shows the entry "Army Regulation 635-200, chapter 10."  Item 26 (Separation Code) shows the entry "KFS."  Item 27 (Reentry Code) shows the entry "4."  Item 28 (Narrative Reason for Separation) shows the entry "in lieu of trial by court-martial."

9.  There are no orders for the ARCOM in the available records.

10.  On 17 December 2010, the Army Discharge Review Board denied the applicant's request for a general discharge.

11.  He provides a character reference letter from a co-worker who attests:

* the applicant has impressed him in a very positive way
* he would be more than proud to serve with him if ever recalled to active duty
* the applicant has shown a high level of maturity and takes on added responsibilities cheerfully and without complaint

12.  Army Regulation 600-8-22 states the ARCOM may be awarded to any member of the Armed Forces of the United States who, while serving in any capacity with the Army after 6 December 1941, distinguishes himself or herself by heroism, meritorious achievement, or meritorious service.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

13.  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.

14.  Army Regulation 635-200 states 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 (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.

	a.  RE-4 applies to Soldiers who are separated from their last period of service with a nonwaivable disqualification.  They are ineligible for enlistment.

	b.  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.

15.  The Separation Program Designator Code/Reentry Code Cross Reference Table, dated October 1999, shows that Soldiers given a separation program designator of KFS will be given an RE code of 4.

16.  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.

17.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant's RE code was assigned based on his discharge under the provisions of Army Regulation 635-200, chapter 10.  The RE code associated with this type of discharge is "RE-4."  As a result, he received the appropriate RE code associated with his discharge.

2.  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 his request to change his RE code.

3.  His record of service included 61 days of lost time due to desertion.  As a result, his record of service was not satisfactory.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge.

4.  His voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial was administratively correct and in conformance with applicable regulations.  He had an opportunity to submit a statement in which he could have voiced his concerns; however, he elected not to do so.

5.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

6.  Since there are no orders for the ARCOM in the available records, there is insufficient evidence on which to add this medal to his DD Form 214.

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)                                         AR20110000812



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ABCMR Record of Proceedings (cont)                                         AR20110000812



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