BOARD DATE:	  2 December 2014

		DOCKET NUMBER:  AR20140005678 


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 a change of his reenlistment eligibility (RE) code so that he can reenlist.  

2.  The applicant states he didn't know he was being court-martialed.  He thought he was being "chaptered" out of the Army.  He was told that, if he changed something around, he would be able to go back into the military after a couple of years.  He was under the impression that if he didn't take his squad leader to court he would get a more favorable separation.  He was young and made a bad decision and did a lot of things wrong.  He believes he is a completely different person than he was then and would like another opportunity to serve.  He now has a wife and infant child and he loves the country.  

3.  The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and a letter of recommendation from a South Dakota Army National Guard (SDARNG) sergeant first class (SFC).

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.  On 28 December 2005, the applicant enlisted in the Regular Army.  He was approximately eighteen-and a-half years old and a high school graduate.  He completed training as an infantryman, was stationed in Hawaii, and was advanced to pay grade E-2 on 1 July 2006.

3.  He received nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice on 13 July 2006 for failure to obey a lawful general order by underage drinking and on 4 October 2006 for assault and battery.

4.  On 8 February 2007, charges were preferred under the Uniform Code of Military Justice for assault and battery on a fellow Soldier and a staff sergeant by striking them in their faces with his closed fist and for communicating a threat to, "wait by SFC D------"s car and kick his ass."

5.  An 8 February 2007 Mental Status Evaluation found the applicant's behavior normal.  He was fully alert and oriented and displayed an unremarkable affect, clear thinking, normal thought content and good memory.  The examiner, a psychiatric nurse practitioner, opined the applicant had the mental capacity to understand and participate in proceedings, was mentally responsible, met retention requirements and noted that the examination was command-directed

6.  The applicant consulted with counsel and was advised of his pretrial confinement rights, on 2 February 2007.  He was confined pending trial by court-martial.

7.  The separation package contained in the applicant's Interactive Personnel Records Management System (iPERMS) record is incomplete.

8.  On 16 February 2007, the applicant was separated for the good of the service in lieu of trial by court-martial.  He received an under other than honorable conditions discharge under the provisions of Army Regulations 635-200, chapter 10 and was assigned a separation code of KFS and an RE code of 4.  He had 1 year, 1 month, and 14 days of creditable service.

9.  On 15 May 2013, the Army Discharge Review Board denied the applicant's request to upgrade his discharge.

10.  Army Regulation 635-200 sets forth the basic authority and procedures for the separation of enlisted personnel.  It states in:

	a  Chapter 10 – 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 3-7a – an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	c.  Paragraph 3-7b – a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

11.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  The SPD code for discharge in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10 is KFS.

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

13.  In the letter of recommendation submitted in support of this request a SDARNG SFC states that he has known the applicant since he was a teenager and that he is in a partnership with the applicant engaged in teaching martial arts to young people.  He thinks the applicant would be a great asset to the ARNG because of his prior military experience.

14.  Army Regulation 15-185 provides the guidance and procedures for the operation of the Army Board for Correction of Military Records.  Paragraph 2–9 provides that the Board begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence

DISCUSSION AND CONCLUSIONS:

1.  It is presumed that the applicant's discharge procedure was properly conducted.  He has provided no evidence to the contrary.

2.  The applicant's RE code was assigned based on the reason for his separation from active duty.  He was assigned an SPD code of KFS.  The SPD code was the appropriate code based on the guidance provided in Army Regulation 
635-5-1 for Soldiers separating under the provisions of Army Regulation 
635-200, chapter 10.  The corresponding RE code for SPD code KFS is 4.

3.  RE-4 applies to Soldiers who are separated from their last period of service with a nonwaivable disqualification.  They are ineligible for enlistment.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20140005678





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ABCMR Record of Proceedings (cont)                                         AR20140005678



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