IN THE CASE OF:	   

		BOARD DATE:	  12 June 2012

		DOCKET NUMBER:  AR20110025206 


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 reentry eligibility (RE) code to an RE-3 so that he has a chance to reenter military service.

2.  The applicant states:

* when he became absent without leave (AWOL) from his basic combat training post he was immature, lacked discipline, and he had no respect for authority
* the record is in error because it was not fully explained to him that he could not enlist later – that part was not made clear to him
* since his mistake of going AWOL he has grown up and takes full responsibility

3.  The applicant provides:

* his DD Form 458 (Charge Sheet)
* Orders 196-0179, issued by Headquarters, U.S. Army Armor Center, Fort Knox, KY, dated 14 July 208
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Army Discharge Review Board's (ADRB) decision, dated 6 October 2010


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 6 February 2008 at age 21 years and 7 months for a period of 3 years and 16 weeks.  He never completed his military training.

3.  On 12 March 2008, he was reported AWOL.  On 11 April 2008, his status changed from AWOL to dropped from the rolls of his unit as a deserter.  He was subsequently apprehended by civilian authorities at Bardford, VT on 23 May 2008 and he was returned to military control on the same date.

4.  On 5 June 2008, court-martial charges were preferred against the applicant for the AWOL offense.  He consulted with counsel and he voluntarily requested 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.  He indicated he understood the elements of the charges against him and admitted he was guilty of at least one offense or of a lesser-included offense for which a punitive discharge was authorized.  He acknowledged he would receive a discharge under other than honorable conditions.  He also understood he would be deprived of many or all Army benefits and he might be ineligible for benefits administered by the Department of Veterans Affairs (VA).  He stated he understood he could expect to encounter substantial prejudice in civilian life because of this discharge.

5.  On 19 June 2008, the applicant's immediate commander recommended his separation with an under other than honorable conditions discharge.

6.  On 26 June 2008, the separation authority approved the applicant's voluntary request for discharge under the provisions of Army Regulation 635-200,
chapter 10, with issuance of an under other than honorable conditions discharge.
7.  On 18 July 2008, the applicant was discharged accordingly.  The DD form 214 he was issued at the time shows he was assigned a separation code of "KFS," an RE code of "4," and a narrative reason for separation of "in lieu of trial by court-martial."

8.  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.

9.  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-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.

	b.  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 RE code was properly assigned.  He never completed his initial training and his AWOL was terminated by apprehension by civilian authorities; he did not return on his own.

2.  He states he has matured and asserts that he accepts full responsibility for his actions.  He was over 21 years of age when he enlisted.  There is no evidence to show he was any less mature than other Soldiers of that age or younger who successfully completed their enlistment.

3.  As a result of the authority for his separation, his assigned separation code, and the narrative reason for his separation, he was properly assigned an RE code of "4."


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)                                         AR20110025206



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ABCMR Record of Proceedings (cont)                                         AR20110025206



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