IN THE CASE OF:	  

		BOARD DATE:	 1 December 2011 

		DOCKET NUMBER:  AR20110011281 


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 allow him the possibility to reenter the military.

2.  The applicant states there is no error in his RE code.  He made an immature decision to be absent without leave (AWOL) leading to his discharge under other than honorable conditions in lieu of trial by court-martial.  He states he has grown, matured, and developed a very strong work ethic along with a very strong passion for the military as a whole.  He would like a second chance to serve in the military.

3.  The applicant provides no 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 applicant's military records show he enlisted in the Regular Army on 30 September 1999.  He completed training and was awarded the military occupational specialty of M1 Abrams tank systems mechanic.  The highest rank/grade he held was private/E-2.

3.  On 12 February 2001, court-martial charges were preferred against him for being AWOL during the period 18 July 2000 to 5 February 2001 (203 days).

4.  On 12 February 2001 after consulting with counsel, he voluntarily requested discharge in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations).  He acknowledged he was making the request of his own free will and he had been advised of the implications that were attached to it.  He acknowledged that by submitting the request for discharge he was guilty of the charge against him or of (a) lesser-included offense(s) therein contained which also authorized the imposition of a discharge under other than honorable conditions.

5.  The applicant also acknowledged he had been fully advised of the nature of his rights under the Uniform Code of Military Justice.  He further acknowledged he understood if his discharge request were approved and he was discharged under other than honorable conditions, he would 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.  He did not submit a statement in his own behalf.

6.  On 12 February 2002, his request for discharge in lieu of trial by court-martial was approved by the appropriate authority.

7.  On 26 February 2002, he was given an under other than honorable conditions discharge under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial after completing 1 year, 10 months and 4 days of active service.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows lost time under Title 10, U.S. Code, section 972, during the period 18 July 2000 to 5 February 2001 (203 days).  His DD Form 214 shows the entry "KFS" in item 26 (Separation Code) and the entry "4" in item 27 (Reentry Code).

8.  On 13 October 2006, the Army Discharge Review Board denied his request to upgrade his discharge under other than honorable conditions.

9.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes), table 2-3, states that SPD code KFS denotes in lieu of trial by court-martial.

10.  The U.S. Army Human Resources Command publishes a cross-reference table of SPD and RE codes.  The cross-reference table in effect at the time showed an SPD code of KFS was assigned an RE code of 4.

11.  Pertinent Army regulations provide that individuals will be assigned RE codes based on their service records or the reason for discharge prior to discharge or release from active duty.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the Reserve Components.  Chapter 3 prescribes basic eligibility for prior-service applicants for enlistment and includes a list of Armed Forces RE codes.  Table 3-1 shows RE-4 applies to a Soldier who is separated from the last period of service with a nonwaivable disqualification.

DISCUSSION AND CONCLUSIONS:

1.  While the applicant requests a change to his RE code, it is necessary to consider whether the reason for his discharge should be changed since the RE code is based on the reason for discharge.  The applicant admitted guilt to the charge of being AWOL and voluntarily requested discharge to avoid trial by court-martial.  As such, his discharge was proper and equitable.

2.  There is no evidence in the available record and the applicant has provided no evidence that shows irregularity in the assignment of his RE code.  He was disqualified from reenlistment based on misconduct and the disqualification is non-waivable under Army regulations.

3.  The SPD cross-reference table shows the applicant was assigned an RE code of 4 based on the reason for discharge.  As such he was properly assigned an RE code of 4.

4.  While his desire to enlist in the Army is commendable, this is not a basis for changing a properly-assigned RE code.  As such, the applicant's RE code is correct and there is no reason to change it.



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)                                         AR20110011281



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ABCMR Record of Proceedings (cont)                                         AR20110011281



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