IN THE CASE OF:	  

		BOARD DATE:	  18 December 2014

		DOCKET NUMBER:  AR20140008501 


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 upgrade of the reentry (RE) code shown on his DD Form 214 (Certificate of Release or Discharge from Active Duty) from RE-4 to RE-3. 

2.  The applicant states, in effect, his previous request, dated 9 September 2002, for an upgrade of his discharge was approved by the Army Discharge Review Board (ADRB).  As a result, his under other than honorable conditions discharge was changed to a general under honorable conditions discharge.  His current RE code of 4 is generally given for medical reasons, retirees, or severely repetitive bad behavior and low moral character.  He states he is a hardworking person of high moral character, and the problems that created his separation are behind him.  He believes his skills as a power generation equipment repairman would be useful for the Army National Guard (ARNG).  Changing the RE code to a 3 will allow him to enlist in the ARNG.

3.  The applicant provides no additional evidence.

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.  He enlisted in the ARNG in 1990 and served 3 years.  He then enlisted in the Regular Army, on 26 October 1993.  He held the military occupational specialty 52D (Power Generation Equipment Repairer), and the highest rank he attained while on active duty was sergeant/E-5.

3.  His available records show he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 1 occasion for uttering 6 bad checks.  

4.  He was absent without leave (AWOL) from 28 April 2001 to 4 June 2001 when he surrendered to military authorities.  On 13 June 2001, court-martial charges were preferred against him for violating Article 86 of the UCMJ, specifically for being AWOL from 28 April 2001 to 4 June 2001.

5.  On 13 June 2001, the applicant consulted with counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and procedures and rights available to him.  Subsequent to receiving legal counsel, he voluntarily requested discharge under the provisions for the good of the service - in lieu of trial by court-martial.  He confirmed he had no desire to continue military service and did not submit statements in his own behalf.  In his request for discharge, he indicated he understood that by requesting discharge 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.

6.  On 25 January 2002, the separation authority approved the applicant's request for discharge and directed he be reduced to the lowest enlisted grade and be issued an under other than honorable conditions discharge.  Accordingly, he was discharged on 6 February 2002.  His DD Form 214 shows he served 8 years, 2 months, and 3 days of creditable active military service during the period under review and he had 37 days of lost time.  His DD Form 214 also shows in item 26 (Separation Code), the entry "KFS" and item 27 (RE Code) the entry 4. 

7.  He applied to the ADRB and his request for upgrade was approved.  On 27 March 2003, he was notified the ADRB determined his characterization of service was inequitable and recommended an upgrade to a general, under honorable conditions.  However, the ADRB determined the reason for his discharge was proper and equitable and voted not to change it.  He was issued a new DD Form 214 showing a general under honorable conditions discharge.  The RE code was not changed as a result of this action.

8.  On 15 April 2013, the ADRB received the applicant's request to upgrade his general discharge under honorable conditions to an honorable discharge.  The ADRB did not favorably consider his request.  Additionally, no change was made to the RE code shown on his revised DD Form 214.

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 (Personnel Separations – Enlisted Personnel).

11.  The SPD/RE Code Cross Reference Table 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 requests the RE code shown on his new DD Form 214 be changed to RE-3 so that he can reenlist in the ARNG.  His current code of RE-4 gives him a nonwaivable disqualification for reenlistment, where an RE-3, while still disqualified, allows for his disqualification to be waived.  The result of his requested change would offer the opportunity to once again serve in the military, but only if he could overcome the disqualification with a waiver.  

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, 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.

3.  The evidence of record further confirms his RE code was assigned based on his separation under the provisions of chapter 10, Army Regulation 635-200.  The RE code associated with this type of discharge is RE-4.  He therefore received the appropriate RE code associated with his discharge.

4.  Based upon the foregoing and the fact he did not submit any evidence showing the RE code was given in error or due to an injustice, there is an insufficient basis upon which to grant the requested 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)                                         AR20140008501



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ABCMR Record of Proceedings (cont)                                         AR20140008501



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