BOARD DATE:	  17 July 2014

		DOCKET NUMBER:  AR20130021665 


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 of "4" to a more favorable reentry (RE) code.

2.  The applicant states his current RE code is unjust because he turned himself in after being absent without leave (AWOL) for 27 days from combat basic training (CBT).  He contends, in effect, that he was young when he went AWOL.  Prior to reporting the Military Entrance Processing Station (MEPS), he got into a terrible car accident in which several people were injured and one died.  During his training and while on a live fire exercise he was notified by a civilian insurance company attorney that no matter where he went the deceased family would make sure he was sued for the accident.  This scared him and because he was an infantryman he started to think that he could not only end up losing his life or limbs but also everything he fought for because of this lawsuit.  It would be an honor to be given the opportunity to serve his country again.

3.  The applicant provides information related to ongoing ligation in two cases where he is named defendant.

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 11 April 2002.  His record shows his date of birth 19 July 1982.  He was 19 years of age when he enlisted.  

3.  A DD Form 458 (Charge Sheet) shows he was charged with being AWOL from 2 July 2002 to 8 August 2002.

4.  After consulting with counsel, he voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10 on 16 August 2002.  In his voluntary request for discharge, he acknowledged he was guilty of the charge against him or a lesser included offense which authorized the imposition of a bad conduct or dishonorable discharge.  He indicated he understood if his request was accepted he could be discharged under other than honorable conditions.  He further acknowledged he understood that as a result of the issuance of such a discharge, he could be deprived of many or all Army benefits, be ineligible for many or all benefits administered by the Department of Veterans Affairs, be deprived of his rights and benefits as a veteran under both Federal and State law, and encounter substantial prejudice in civilian life.  He elected not to submit a statement in his own behalf.

5.  On 4 September 2002, the separation authority approved his request and directed that he be discharged with an entry level separation.  On 20 September 2002, he was discharged accordingly.

6.  His DD Form 214 shows he completed 4 months and 3 days of net active service.  The form shows in:

* item 24 (Character of Service) - "uncharacterized"
* item 25 (Separation Authority) - "AR 635-200, chap 10"
* item 26 (Separation Code) - "KFS"
* item 27 (RE Code) - "4"

7.  He submits information generated from the internet which shows he was the defendant in two previous lawsuits brought by two separate insurance companies seeking damages as the result of an accident caused by the applicant where he was determined to be an uninsured driver and driving without permission.
8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

	a.  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.

	b.  Paragraph 3-9a(1) states a separation will be described as entry-level with service uncharacterized if processing is initiated while a Soldier is in an 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.

	c.  Entry-level status is defined as the first 180 days of continuous active duty or the first 180 days of continuous active service after a service break of more than 
92 days of active service.

9.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPD codes to be used for these stated reasons.  The regulation states separation code "KFS" applies to Soldiers discharged under the provisions of Army Regulation 635-200, chapter 10.

10.  The SPD/RE Code Cross Reference Table, dated 15 June 2006, shows that Soldiers given an SPD code of "KFS" will be given an RE code of 4.

11.  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.  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 provides a list of the RE codes.  RE code "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.  He requests a more favorable RE code.

2.  His record shows he was 19 years of age at the time of his unauthorized absence and his circumstances were clearly traumatic.  The fact that he turned himself in is also noted but does not negate his misconduct.  The evidence of record shows he was charged with and admitted he was guilty of an offense that authorized the imposition of a punitive discharge, and he voluntarily requested discharge for the good of the service 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.

3.  RE code "4" is associated with discharges under the provisions of Army Regulation 635-200, chapter 10.  This RE code is properly shown on his DD Form 214.  His desire to reenter the Army is insufficient reason to change an RE code properly assigned as a result of his voluntary request for discharge in lieu of trial by court-martial.

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)                                         AR20130021665



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ABCMR Record of Proceedings (cont)                                         AR20130021665



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