IN THE CASE OF:	  

		BOARD DATE:	  27 July 2011

		DOCKET NUMBER:  AR20110001609 


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 her reentry eligibility (RE) code be changed from "4" to "3."

2.  The applicant states, in effect, after completion of basic training she was sent to Fort Lee in VA.  She contends due to overcrowding, she was notified there would be a 3-6 month holdover.  She contacted her recruiter and informed him of the situation.  He instructed her to leave Fort Lee, go home, and he would take care of the paperwork.  She indicates her grandmother also spoke with her recruiter.  She went back home and was later arrested for being absent without leave (AWOL).  She made it clear when she was arrested she was following orders.      

3.  She indicates she has taken responsibility for her actions and she should have gone to her commander and/or drill sergeant.  She subsequently contacted her recruiter and requested he provide a statement for her but he told her he did not have any recollection of the matter.  She points out she is going to school, she works, she is a sponsor of a child in Indonesia, and she has not been in any trouble.  She would like to reenlist.    

4.  The applicant provides:

* Letters of support for her reenlistment
* Character reference letters
* Resume
* Job summaries
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.  She enlisted in the Regular Army on 25 October 2006.  She went AWOL on 31 January 2007 and returned to military control on 18 June 2007.  On 25 June 2007, she requested discharge in lieu of trial by court-martial.  The separation authority approved her request on 22 August 2007 and directed the issuance of a discharge under other than honorable conditions.  She was discharged on 
7 September 2007 under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 10, in lieu of trial by court-martial.  She completed a total of 5 months and 26 days of creditable active service with 138 days of lost time.

3.  Her DD Form 214 shows the following:

* item 25 (Separation Authority) – "AR [Army Regulation] 635-200, CHAP [Chapter] 10"
* item 26 (Separation Code) – "KFS"
* item 27 (Reentry Code) – "4"
* item 28 (Narrative Reason for Separation) – "IN LIEU OF TRIAL BY COURT-MARTIAL"

4.  She provided several letters of support for her reenlistment.  She also provided two character reference letters from a co-worker and employer.  They attest she is a dependable worker and a good person.

5.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPD codes 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.
6.  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 RE codes:

	a.  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.

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

7.  The SPD/RE Code Cross Reference Table, dated 15 June 2006, shows that Soldiers given an SPD code of "KFS" will be given an RE code of 4.

DISCUSSION AND CONCLUSIONS:

1.  She contends she was following orders because her recruiter instructed her to leave Fort Lee, go home, and he would take care of the paperwork.  However, there is no evidence to support this contention.  By her own admission, the recruiter had no recollection of the matter when she asked him to provide a statement.  She was charged with being AWOL from 31 January 2007 to 17 June 2007. 

2.  The evidence of record confirms her RE code was assigned based on her discharge under the provisions of Army Regulation 635-200, chapter 10.  The RE code associated with this type of discharge is "RE-4."  Therefore, the applicant received the appropriate RE code associated with her discharge.

3.  The applicant's RE code was administratively correct and in conformance with applicable regulations at the time of her separation.  Therefore, there is no basis for granting the applicant's 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)                                         AR20110001609





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ABCMR Record of Proceedings (cont)                                         AR20110001609



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