IN THE CASE OF:	  

		BOARD DATE:	  14 January 2014

		DOCKET NUMBER:  AR20130009019 


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 that his reentry eligibility (RE) code be changed from RE-4 to RE-1.

2.  The applicant states he is ready and willing to serve his country and believes his discharge was based on discriminatory feelings from his fellow Soldiers and a lack of concern from his superiors.  He did not appeal because he was unsure of the consequences and to whom he should report the acts of discrimination.

3.  The applicant provides:

* Orders 243-0174
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Enlisted Record Brief

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 1 November 2006.  

3.  On 25 June 2007, charges were preferred against the applicant for being absent without leave for the period 24 February to 14 June 2007.

4.  On 25 June 2007, 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.  He was advised of 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, the applicant requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10, Army Regulation 635-200 (Personnel Separations).

5.  In his request for discharge, he acknowledged he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person.  He also understood that by requesting a 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 dishonorable discharge.  He further acknowledged he understood that if the discharge request were approved he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He did not submit statements on his own behalf with his request.

6.  On 22 August 2007, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200 and directed the issuance of an under other than honorable conditions discharge.  On 7 September 2007, 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 a trial by court-martial with an under other than honorable conditions discharge.  He had completed 6 months and 17 days of creditable active military service and he had lost time during his period of enlistment from 24 February to 13 June 2007.  Item 26 (Separation Code) of this form shows the entry "KFS" and item 27 (Reentry Code) shows the entry "4."
8.  There is no evidence in the applicant's personnel service record nor did the applicant provide any evidence that shows he was discriminated against in any way or that he sought assistance from his chain of command for issues involving discrimination.

9.  Army Regulation 635-200 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.

10.  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.  An 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.  An 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.  An RE-4 applies to Soldiers separated from the last period of service with a nonwaivable disqualification.

11.  Army Regulation 635-5-1 (Separation Program Designator Codes (SPD)) 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, Army Regulation 635-200.

12.  The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army and Reserve Component Soldiers.  The Cross Reference Table in effect at the time of the applicant's discharge shows the SPD code of "KFS" with a corresponding RE code of "4."

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request to change his RE code so he may reenter military service has been carefully examined and found to lack merit.

2.  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 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.  There is no evidence he was coerced into signing any documents.   All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  The evidence of record confirms the applicant's RE code was assigned based on his separation under the provisions of chapter 10 of Army Regulation 635-200 in lieu of trial by court-martial.  The separation code associated with this type of discharge is "KFS" and the appropriate RE code associated with this type of discharge and/or SPD code is "RE-4."  Therefore, the applicant was assigned the appropriate RE code.

4.  There is no evidence in the applicant's personnel service record nor did the applicant provide any evidence which shows that he was discriminated against in any way or that he sought assistance from his chain of command for issues involving discrimination.
 
5.  In view of the foregoing, the applicant is not entitled to a change of his         RE code.

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)                                         AR20130009019



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ABCMR Record of Proceedings (cont)                                         AR20130009019



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