IN THE CASE OF:	  

		BOARD DATE:  12 April 2012

		DOCKET NUMBER:  AR20110020554 


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 change of his reenlistment eligibility (RE) code to allow him to reenter military service.

2.  The applicant states he would like to reenter military service and earn an honorable discharge.  His father was diagnosed with pancreatic cancer and his condition started to rapidly decline the day he left for basic training.  He left the Reception Battalion to be with his father.  After his father died, he returned to the Army with the intent to continue his career.  He acknowledges that his actions not only demonstrated poor judgment but were illegal.  He desires to fix the problem, to make himself eligible for government employment including reenlisting, and go on to create a career in the military.

3.  The applicant provides:

* his father's Certificate of Death
* a DD Form 458 (Charge Sheet)
* his request for discharge
* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* a student evaluation
* his college transcript
* two computer-aided design/computer assisted manufacture (CAD/CAM) completion certificates from Oakland Community College
* a Merchant Mariner's Identification Document
* a newspaper article titled "Deadliest job in the world"
* 
four Naval Sea Cadet Corps documents
* an Oakland Sheriff's Office records check
* a letter of support

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.  Prior to his enlistment, the applicant participated in the U.S. Naval Sea Cadet Corps program from June 1999 to June 2003.  He received a unit commendation and qualified as an expert rifleman.

3.  The applicant completed his enlistment application on 8 June 2005 and he entered active duty in the Regular Army on 23 June 2005.

4.  On 27 June 2005, the applicant was reported being absent without leave (AWOL) from the Reception Battalion at Fort Benning, GA.

5.  The applicant's father died from pancreatic cancer on 27 December 2005.

6.  An Oakland Sheriff's Office records check (provided by the applicant) shows the applicant was apprehended on an Army warrant on 9 January 2006 and he was returned to military control.

7.  On 19 January 2006, court-martial charges were preferred against the applicant for being AWOL from on or about 20 July 2005 to on or about
10 January 2006. 

8.  On 19 January 2006, the applicant consulted with legal counsel and he voluntarily requested, in writing, discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), chapter 10, for the good of the service - in lieu of trial by court-martial.  In this request, the applicant admitted guilt to the offense, or a lesser included offense.  Further, the applicant indicated that he understood he could receive an under other than honorable conditions discharge and the discharge would have a significant effect on eligibility for veteran’s benefits. The applicant did not submit a statement in his own behalf.  The unit commander recommended approval of the applicant's voluntary discharge request with an under other than honorable conditions discharge.

9.  A Characterization of Service Checklist for Administrative Discharge Actions shows the applicant was AWOL twice, from 27 June 2005 to 16 July 2005 and from 20 July 2005 to 9 January 2006.

10.  On 30 January 2006, the separation authority approved the applicant's discharge request under the provisions of Army Regulation 635-200, chapter 10, and directed the applicant be reduced to the lowest enlisted grade and discharged under other than honorable conditions.

11.  On 15 February 2006, the applicant was discharged accordingly.  The
DD Form 214 he was issued at the time shows he was discharged under the provisions of Army Regulation 635-200, chapter 10 by reason of in lieu of trial by court-martial.  He was assigned a separation code of KFS with an RE Code of 4. It further shows he completed 1 month and 13 days of creditable service with
26 days of excess leave.  He also accrued 6 months and 27 days of time lost.

12.  The letter of reference letter from a family friend states he knows it was the applicant's desire from a young age to have a military career.  The applicant had worked for him during the summers before he enlisted.  He was aware the applicant's father was ill prior to the applicant's enlistment and that the applicant's father took a serious turn for the worse just after his enlistment.  While he cannot condone the applicant going AWOL, he does understand his reasons.  He believes the applicant deserves a chance to redeem himself.

13.  On 29 June 2011, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, 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.
15.  Army Regulation 635-5-1 (Separation Program Designator (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 that the SPD code KFS is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, chapter 10, by reason of in lieu of trial by court-martial.  The SPD/RE Code Cross Reference Table stipulates that an RE-4 code will be assigned to members separated under these provisions with an SPD code of KFS.

16.  Army Regulation 635-200 further 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 (RA) and the U.S. Army Reserve (USAR).  Table 3-1 included 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 for enlistment 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.  A change of his RE code necessitates a change of the reason for his separation and his SPD.

2.  The applicant was AWOL on two occasions for a combined period of 6 months and 27 days.  His 1 month and 13 days of creditable active service is far outweighed by his time lost especially as none of the creditable service was anything more than administrative processing time.

3.  The applicant had a number of legitimate avenues through which he could have obtained assistance or relief without committing the misconduct which led to his voluntary discharge.  There is no evidence he attempted to seek any assistance prior to his AWOL offenses.

4.  The applicant's administrative separation was accomplished in compliance with applicable regulations.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

5.  At the time of discharge the applicant was appropriately assigned an RE code of 4.  The applicant has provided insufficient evidence to show that the RE-4 he was assigned was or is inappropriate.  Additionally, his post-service employment and his desire to rejoin military service are insufficient reasons to warrant relief.

6.  In view of the foregoing, 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)                                         AR20110020554



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ABCMR Record of Proceedings (cont)                                         AR20110020554



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