BOARD DATE:	  26 January 2012

		DOCKET NUMBER:  AR20110013571 


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 his DD Form 214 (Certificate of Release or Discharge from Active Duty) ending on 28 August 1997, by changing his reentry code 4 (RE-4) to RE-1.

2.  The applicant states he is seeking a change to his RE-4.

	a.  Since his discharge, he has been able to reenlist in the Texas Army National Guard (TXARNG).  He has deployed twice in support of Operation Iraqi Freedom (OIF).  He has been promoted to sergeant, pay grade E-5, and has been granted a secret clearance.

	b.  He was discharged from the TXARNG with an honorable characterization of service and an RE-1.  However, his RE-4 from the Regular Army has prevented him from enlisting in the U.S. Naval Reserve.

	c.  At the time of the incident that led to his discharge from the Regular Army, he was young and scared.  He took the advice of his counsel to pursue and accept an administrative discharge rather than a court-martial.  He was charged with stealing a laptop computer and also buying the same laptop after the theft.

	d.  He contends that he never received any other disciplinary action from the military or as a civilian before or after the incident.  He does not feel his request is unreasonable considering the level of commitment he had made to clear his name and to continue to serve the United States.
 
3.  The applicant provides no additional documentation.

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.  On 28 April 1994, the applicant, at the age of 18 years, 10 months, and 
28 days, enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 92A (Automated Logistics Specialist).  He was subsequently assigned to the 4th Aviation Brigade located in the Federal Republic of Germany.

3.  On 1 November 1995, the applicant was advanced to specialist, pay 
grade E-4.

4.  On or about 8 August 1997, charges were preferred under the Uniform Code of Military Justice for the following violations:

	a.  Article 121: stealing a laptop computer on or about 7 February 1997 valued at more than $100.00;

	b.  Article 130: unlawful entry on 7 February 1997 with intent to commit larceny of a laptop computer, modem and power pack; and

	c.  Article 134: wrongful purchase of a laptop computer valued at more than $100.00 then knowing it to be stolen.

5.  The discharge packet is missing from his military records.  However, his 
DD Form 214 ending on 28 August 1997 shows that he was administratively 


discharged under the provisions of Army Regulation 600-200, chapter 10, for the 
good of the service.  His service was characterized as under other than honorable conditions.  He had completed 3 years, 4 months, and 1 day of creditable active duty service.  Accordingly, he was reduced to private, pay grade E-1 and given a Separation Program Designator (SPD) Code of KFS and an 
RE-4.

6.  On 30 August 2000, the Army Discharge Review board (ADRB) considered the applicant's request to change the characterization of his service.

	a.  The ADRB determined that the characterization of service was too harsh based on the overall quality of his service.  However, it also found that the applicant's criminal act had clearly diminished the quality of his service below that meriting a fully honorable discharge.

	b.  The ADRB further determined that the applicant's discharge was proper.  Accordingly, the ADRB voted to change his characterization of service to general, under honorable conditions but considered the reason for his discharge to be proper.

	c.  The ADRB action also required the applicant's rank and pay grade to be restored to specialist, E-4.

7.  The applicant's DD Form 214 ending on 28 August 1997 was subsequently changed to show:

	a.  his rank and pay grade as specialist, E-4;

	b.  his characterization of service as general, under honorable conditions.

8.  On 15 November 2004, the applicant enlisted in the TXARNG for a period of 
6 years.

	a.  On 23 November 2005, he was ordered to active duty in support of OIF and served in Kuwait/Iraq from 13 December 2005 to 15 November 2006.  He was released from active duty on 8 December 2006.

	b.  On 1 April 2008, he was promoted to sergeant, pay grade E-5.



	c.  On 3 July 2009, he was ordered to active duty in support of OIF and served in Iraq from 15 August 2009 to 14 June 2010.  He was released from active duty on 5 August 2010.

9.  On 5 November 2010, the applicant was separated from the TXARNG due to completion of required service.  His National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) reports that his service with the TXARNG was characterized as honorable.  He was given an RE-1 indicating his eligibility to reenlist without waiver.

10.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

11.  Army Regulation 601-210 prescribes eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment and includes a list of armed forces RE Codes including RA RE codes.  RE-4 applies to persons separated from their last period of service with a non-waivable disqualification.  That regulation further provides that RE codes may only be changed if they are determined to be administratively incorrect.

12.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities and reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  The SPD code of KFS was the appropriate code for the applicant based upon the guidance provided in Army Regulation 635-5-1 for Soldiers separating under the provisions of Army Regulation 635-200, chapter 10, discharge for the good of the service in lieu of trial by court-martial.  Additionally, the SPD/RE Code Cross Reference Table establishes RE-4 as the proper RE code to assign to Soldiers for this reason.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DD Form 214 ending on 28 August 1997 should be changed to show an RE-1 based on his subsequent honorable service in the TXARNG.  He now desires to enter the U.S. Naval Reserve.

2.  In the absence of evidence to the contrary, it is presumed that the applicant's discharge from the Regular Army in 1997 was accomplished in accordance with law and regulations applicable at the time.

3.  The ADRB reviewed the applicant's discharge and made a deliberate determination that the original characterization was too harsh.  The ADRB voted to grant the applicant a general, under honorable conditions discharge.  The ADRB did not find fault with the original reason for his discharge, and voted not to change his RE code.

4.  The applicant's contention that he was young at the time is not sufficiently mitigating to warrant relief.  The applicant was almost 19 years of age when he enlisted in the Regular Army.  He had attained the rank of specialist, pay grade E-4 and had served for approximately 33 months before the negative incidents occurred.  His satisfactory performance prior to the incidents shows that he was neither too young nor immature to have served honorably.

5.  The RE-4, establishing his ineligibility for enlistment/reenlistment, was correctly entered on his separation document in accordance with governing regulations.  There is no evidence of error or injustice.

6.  There is no apparent basis for removal or waiver of the applicant’s disqualification that established the basis for the RE-4.  His subsequent honorable service in the TXARNG is noted; however, such service does not negate his earlier period of less than honorable service.  While the applicant’s desire to continue in the service to his country is commendable, there are no provisions authorizing the change of an RE code for this purpose.

7.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20110013571





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ABCMR Record of Proceedings (cont)                                         AR20110013571



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