MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           28 August 2001                   
	DOCKET NUMBER:   AR2001058434

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Carl W. S. Chun		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Richard T. Dunbar		Member	
	Mr. Donald P. Hupman, Jr.		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  Correction of appropriate military records to show a reentry (RE) code which would allow reenlistment.  In effect, this constitutes a request for removal or waiver of those disqualifications which preclude reenlistment.

APPLICANT STATES:  That he would like to reenlist.  His wife had become very sick, which was verified by the Red Cross, but his first sergeant would not let him go home.  He went absent without leave (AWOL) on 27 July 1999, the day before her scheduled surgery, to care for her and his 7-month old baby.  He called his first sergeant on 30 July 1999 to say he was returning but his first sergeant said he would have him arrested.  He got scared and called a lawyer.  He finally turned himself in on 14 November 1999.  He provides three character witness statements; a Personnel Action form, DA Form 4187, concerning his promotion to Private First Class, E-3; and his Certificate of Release or Discharge from Active Duty, DD Form 214, as supporting evidence.

EVIDENCE OF RECORD:  The applicant's military records show:

He enlisted in the Regular Army on 16 November 1998.  He completed basic training and advanced individual training and was awarded military occupational specialty 13B (Cannon Crewmember).  He completed basic airborne training.  He was advanced to Private First Class on 16 March 1999 as a fast track promotion.

The applicant was assigned to Battery A, 1st Battalion, 319th Field Artillery, Fort Bragg, NC when he departed AWOL on 27 July 1999.  He turned himself in to Fort Knox, KY on 14 November 1999.

On 18 November 1999, court-martial charges were preferred against the applicant charging him with AWOL for the period 27 July 1999 to on or about    14 November 1999. 

On 18 November 1999, after consulting with legal counsel, the applicant voluntarily requested a discharge under the provisions of Army Regulation      635-200, chapter 10 for the good of the service in lieu of trial by court-martial.  The applicant was advised of the effects of a discharge under other than honorable conditions and that he might be deprived of many or all Army and Veterans Administration benefits.  He elected not to submit a statement in his own behalf.

For an unknown reason, the applicant was placed on 435 days excess leave.

On 19 December 2000, the appropriate authority approved the request and directed the applicant receive a discharge under other than honorable conditions.

On 26 January 2001, the applicant was discharged with a discharge under other than honorable conditions, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, discharge in lieu of trial by court-martial.  He had completed 1 year, 10 months, and 21 days of creditable active service and had 110 days of lost time.  He was given a separation code (SPD) of KFS (discharge in lieu of trial by court-martial) and an RE code of 4.

Pertinent Army regulations provide 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 covers eligibility criteria, policies and procedures for enlistment and processing into the Regular Army (RA) and the U.S. Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of armed forces RE codes, including RA RE codes.

RE-4 applies to persons not qualified for continued Army service and the disqualification is not waivable.  

Army Regulation 635-5, SPD/RE Code Cross-Reference Table, states that when the SPD is KFS then the RE code will be 4.

Recruiting personnel have the responsibility for initially determining whether an individual meets current enlistment criteria.  They are required to process a request for waiver under the provisions of chapter 4, Army Regulation 601-210, Regular Army and Army Reserve Enlistment Program. 

Conversation with the U. S. Total Army Personnel Command (PERSCOM) on   23 August 2001 indicated that while a request for waiver is not required to be processed when the RE code is 4, a recruiting battalion may talk to them about a particular RE-4 case.  If the individual’s explanation for the circumstances surrounding the disqualification and his or her potential for further service appear to have merit, PERSCOM may tell the battalion to submit the request for waiver as an exception to policy for consideration.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

2.  In view of the fact that the applicant was discharged in lieu of trial by court-martial, the assigned reentry code of RE-4 was and still is appropriate.  However, in view of the information obtained from PERSCOM on 23 August 2001, the applicant is encouraged to show this Board action and the telephonic conversation of record to his recruiter and request the recruiter contact PERSCOM about his case.

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

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__jns___  __rtd___  __dph___  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2001058434	
SUFFIX		
RECON		
DATE BOARDED	20010828	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	100.03	
2.		
3.		
4.		
5.		
6.