IN THE CASE OF:	  

		BOARD DATE:	  22 December 2011

		DOCKET NUMBER:  AR20110012977 


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 correction of item 26 (Separation Code) and item 27 (Reentry Code) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to allow him to reenter the Army.

2.  He states:

* he needs these codes changed so he can enlist in the Army
* his discharge was upgraded from under other than honorable conditions (UOTHC) to uncharacterized
* his wife was very ill with lupus at the time and she was unable to care for herself and their children

3.  He provides:

* two DD Forms 214
* DA Form 31 (Request and Authority for Leave)
* Red Cross form
* self-authored statement
* letter from a chaplain
* spouse's death certificate
* letter from a physician with a list of medical payments
* letter from the Army Review Boards Agency Support Division
* Congressional correspondence



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 enlisted in the Regular Army on 22 August 2002 for a period of 3 years.

3.  He provides a Red Cross form indicating his wife was in the hospital due to lupus complications.  The message indicated his wife needed him to be at home with their two children (ages 4 and 2).  Her condition was stable, but she was in a lot of pain.

4.  On 23 September 2002, he submitted a request for emergency leave for the period 23 September to 6 October 2002.

5.  He provides a letter, dated 25 October 2002, requesting to be released from his contract with the U.S. Army.  In summary, he stated:

* his wife's health had deteriorated and she could no longer care for their children
* his wife suffered from lupus, rheumatoid arthritis, and asthma
* he had to be with his wife and children, prioritize his life, and put his family first

6.  In a letter, dated 25 October 2002, the Installation Chaplain, Headquarters, Fort Hamilton Military Community, Brooklyn, NY, stated he counseled the applicant concerning his need for a discharge due to his wife's health problems.  The chaplain recommended the applicant be granted a hardship discharge in order to assist his wife during her medical crisis.

7.  On 5 June 2003, charges were preferred against him for being absent without leave (AWOL) from 8 October 2002 to 29 May 2003.

8.  He consulted with legal counsel and voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  In doing so, he admitted guilt to the offense charged and acknowledged that he might encounter substantial prejudice in civilian life.  He also acknowledged he understood he might be ineligible for many or all Army benefits administered by the Department of Veterans Affairs if a UOTHC discharge were issued.  He did not submit statements in his own behalf.

9.  The separation authority approved his request for discharge for the good of the service in lieu of court-martial under the provisions of Army Regulation 
635-200, chapter 10, with the issuance of a UOTHC discharge.

10.  He was discharged on 18 June 2003 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He completed 2 months and 4 days of active military service with 232 days of lost time.  His DD Form 214 shows he was assigned a reentry eligibility (RE) code of 4 and a separation program designator (SPD) code of "KFS" (in lieu of trial by court-martial).

11.  He provided a copy of his wife's death certificate which shows she died on 15 November 2004.

12.  In a 30 May 2008 letter, a physician indicated she had treated the applicant's wife for chronic renal failure, lupus nephritis, and hypertension during the periods December 1999 through September 2003 as indicated on the list of payments.

13.  On 12 June 2009, the ADRB upgraded the applicant's character of service from UOTHC to uncharacterized.  However, the ADRB decided not to change the underlying reason for the applicant's discharge.

14.  On 31 August 2009, the Army Review Boards Agency Support Division, St. Louis, MO, informed him that his discharge had been changed to uncharacterized and he was provided a new DD Form 214.

15.  He provides Congressional correspondence which shows he contacted his Congressman regarding correction of his RE code and separation code.  As a result, his request was forwarded to the appropriate officials within the Department of the Army.

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 UOTHC is normally considered appropriate.

17.  Army Regulation 635-5-1 (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's to be used for these stated reasons.  The regulation shows that SPD KFS as shown on the applicant's DD Form 214 specifies the narrative reason for discharge as "in lieu of trial by court-martial" and the authority for discharge under this SPD is Army Regulation 635-200, chapter 10.

18.  The SPD/RE Code Cross Reference Table establishes RE code 4 as the proper reentry code to assign to Soldiers separated under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.

19.  Army Regulation 635-200 states 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.

20.  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 RE codes.

	a.  RE-1 applies to Soldiers completing their terms of active service who are considered qualified to reenter the U.S. Army.  They are qualified for enlistment if all other criteria are met.

	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.

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

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that his RE code of "4" be changed so he may reenter the military was considered; however, it does not serve as a basis to change a properly-assigned RE code regardless of the Army's current enlistment policies.

2.  His statements regarding his wife's health problems during his active duty service were acknowledged.  While the Board is sympathetic, he had many legitimate avenues through which to obtain assistance or relief without committing the misconduct (AWOL) which led to his discharge.  He had requested discharge, and a chaplain recommended he receive a hardship discharge.  He should have made that request before he went AWOL.  Therefore, those issues alone are not sufficiently mitigating to warrant the requested relief.

3.  The applicant's RE code is based on his narrative reason for separation and cannot be changed unless the applicant's narrative reason for separation is changed.  His narrative reason for separation was based on his voluntary request for discharge in lieu of trial by court-martial and there is no basis upon which this reason should be changed.

4.  In view of the foregoing, there is no basis for granting relief to the applicant in this case.

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)                                         AR20110012977



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ABCMR Record of Proceedings (cont)                                         AR20110012977



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