BOARD DATE:	  26 January 2012

		DOCKET NUMBER:  AR20110014222 


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) to show his reentry (RE) code as 1 vice 4 so he can enlist in any branch of the service without a waiver.

2.  The applicant states halfway through basic training he injured his ankle.  He was encouraged to leave [the Army] by a superior officer since he was now "useless."  He misinterpreted this information and left assuming his official discharge papers would be sent to his home.  He later received what he thought were his official discharge papers.  He realized his mistake when he was arrested for being absent without leave (AWOL) after being stopped for a broken tail light.  His fiancé sent paperwork to the commanding general at Fort Sill, OK, to clarify this mistake.  He feels his RE code does not fit the crime.  While he was in the service, he did not show that he was unfit to serve and had no acts of misconduct.  He would now like to serve in the Navy and wants his RE code changed.

3.  The applicant provides:

* DD Form 214
* Four orders
* A memorandum
* A statement




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 records show he enlisted in the Regular Army (RA) on 14 November 2006.  He attended basic training while assigned to the 1st Battalion, 40th Field Artillery, Fort Sill, OK.

3.  On 11 January 2007, he was reported AWOL from his assigned unit and on 10 February 2007, he was dropped from the unit rolls.

4.  On 18 October 2007, he was apprehended by civil authorities and returned to military control on the same date.

5.  On 1 November 2007, he was interviewed by the first sergeant of the Personnel Control Facility, Fort Sill, OK.  In that interview, the applicant stated he went AWOL because his brother was diagnosed with acquired immune deficiency syndrome (AIDS) and he left to take care of him.  He indicated he did not want to remain on active duty.

6.  On 2 November 2007, court-martial charges were preferred against him for one specification of being AWOL from 11 January to 18 October 2007.

7.  On 2 November 2007, he consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, in lieu of trial by court-martial.

8.  In his request for discharge, he acknowledged he understood if the discharge request was approved, he might be discharged under other than honorable conditions.  He also acknowledged he understood he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the Department of Veterans Affairs, he might be deprived of his rights and benefits as a veteran under both Federal and State laws, and he might expect to encounter substantial prejudice in civilian life.

9.  On 17 December 2007, the separation authority approved the applicant's voluntary request for discharge and directed that he receive an uncharacterized discharge.  On 23 January 2008, he was discharged accordingly.  He completed 5 months and 2 days of creditable active service and had 280 days of time lost due to being AWOL.

8.  The DD Form 214 he was issued confirms he was discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court with a character of service of uncharacterized.  This DD Form 214 shows a separation program designator (SPD) code of "KFS" and an RE code of "4."

9.  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.

10.  Army Regulation 635-200, paragraph 3-9, states a separation will be described as entry-level with service uncharacterized if processing is initiated while a soldier is in entry-level status, except when characterization under other than honorable conditions is authorized under the reason for separation and is warranted by the circumstances of the case.

11.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It states the SPD code KFS is the appropriate code to assign to Soldiers discharged in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  The SPD/RE Code Cross Reference Table stipulates that an RE code of 4 will be assigned to members separated with an SPD code of KFS.

12.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the United States Army Reserve.  This regulation provides 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.  Chapter 3 of this regulation prescribes basic eligibility for prior service applicants for enlistment, and includes a list of Armed Forces reentry codes, including RA RE codes.  Table 3-1 includes a list of the RA RE codes:

	a.  RE-1 applies to Soldiers completing their term 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 with a nonwaivable disqualification.

DISCUSSION AND CONCLUSIONS:

The evidence of record shows the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  His assigned RE code of 4 and SPD code of KFS were based on his narrative reason for discharge.  This is the only RE code permitted with an SPD code KFS.  The RE code is correctly entered on his DD Form 214.  Therefore, he is not entitled to the 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)                                         AR20110014222





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ABCMR Record of Proceedings (cont)                                         AR20110014222



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