IN THE CASE OF:	  

		BOARD DATE:	  27 August 2013

		DOCKET NUMBER:  AR20130001423 


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 reentry eligibility (RE) code from RE-4 to a more favorable code.

2.  The applicant states:

* he would like the opportunity to reenter military service, but his RE code prevents him from reentering 
* he previously explained his situation to his commander and admitted that he made a mistake
* his commander fully understood the situation and that is why he received a general discharge
* he is aware of his mistake but he was young at the time and he was unaware of the impact of this RE code
* his post-service accomplishments include a masters degree in security and risk management

3.  The applicant provides his separation orders and DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 was born on XX February 1975 and enlisted in the Regular Army at 20 years of age on 22 November 1995.  He held military occupational specialty 68W (Health Care Specialist).  He was assigned to Fort Campbell, KY.

3.  On 8 November 1997, he departed his unit in an absent without leave (AWOL) status and on 8 December 1997, he was dropped from the Army rolls as a deserter.  On 1 July 2008, he was apprehended by civil authorities in San Juan, Puerto Rico and returned to military control at the Personnel Control Facility, Fort Knox, KY on 2 July 2008. 

4.  On 7 July 2008, court-martial charges were preferred against the applicant for one specification of being AWOL from 8 November 1997 to 1 July 2008. 

5.  On 7 July 2008, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for 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 in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations).   In his request for discharge, he indicated:

	a.  he was making this request of his own free will and he had not been subjected to any coercion whatsoever by any person; 

	b.  he understood by requesting discharge, he was admitting guilt to the charges against him or of a lesser-included offense that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions; 

	c.  he understood if the discharge request were approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws; and 

	d.  he stated, "Moreover, I hereby state that under no circumstances do I desire further rehabilitation, for I have no desire to perform further military service."

6.  On 8 August 2008, the separation authority approved the applicant's voluntary request for discharge under the provisions of chapter 10, Army Regulation 
635-200, for the good of the service in lieu of trial by court-martial directed, and directed that he be reduced to the lowest enlisted grade and receive a general discharge.   On 5 September 2008, the applicant was accordingly discharged.

7.  The DD Form 214 he was issued shows he was discharged for the good of the service in lieu of trial by court-martial with a character of service of under honorable conditions (general). This form further confirms he completed 2 years, 1 month, and 21 days of creditable active military service during this period and he had lost time from 8 November 1997 to 30 June 2008.  Item 26 (Separation Code) of this form shows the entry "KFS" and item 27 (Reentry Code) shows the entry "RE-4."

8.  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.

9.  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 the Regular Army RE codes.

* 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
* 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
* RE-4 applies to Soldiers separated from their last period of service with a nonwaivable disqualification
10.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  The SPD code of "KFS" is the correct code for Soldiers separating under the provisions of chapter 10 of Army Regulation 635-200.

11.  The SPD/RE Code Cross Reference Table, dated 31 March 2005, provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers.  This cross reference table shows the SPD code and a corresponding RE code.  The SPD code of "KFS" has a corresponding RE code "4."

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his RE-4 should be changed.

2.  His records show he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  He voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.  In addition, he stated in his request for discharge that under no circumstances did he desire to perform further military service.

3.  The applicant was 20 years of age at the time of his enlistment and nearly 22 years of age at the time he started his extensive AWOL offense.  There is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service obligations.  Additionally, there is no evidence in the available records and the applicant has not provided sufficient evidence showing that his acts of indiscipline were the result of his age.

4.  The evidence of record further confirms his RE code was assigned based on his separation under the provisions of chapter 10 of Army Regulation 635-200 for the good of the service in lieu of trial by court-martial.  The RE code associated with this type of discharge is RE-4.  Therefore, he received the appropriate RE code associated with his discharge.   

5.  The applicant's DD Form 214 shows the appropriate RE code and he did not submit any evidence that the RE code is in error or unjust.  Therefore, the applicant is not entitled to 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)                                         AR20130001423



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130001423



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1