RECORD OF PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           18 November 2003
	DOCKET NUMBER:   AR2003090316

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

	Mr. Carl W. S. Chun		Director	
	Ms. Beverly A. Young		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Mark D. Manning		Member	
	Ms. Barbara J. Ellis		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests that his Reentry Eligibility (RE) code be changed to a more favorable RE code.

2.  The applicant states that he wants to change his RE code to reenlist and to fulfill his contract to the Army.  He realizes now that he made a mistake in leaving the service but he has grown a lot in the last 4 years.  

3.  The applicant did not provide any documents in support of his application.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an error which occurred on               5 November 1999.  The application submitted in this case is dated 15 April 2003. 

2.  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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant enlisted in the Regular Army on 11 September 1997.

4.  He was absent without leave (AWOL) on 24 March 1999 from Fort Hood, Texas.  He surrendered to military authorities and was returned to military authorities on 26 May 1999.

5.  Charges were preferred against the applicant on 2 June 1999 for being AWOL from 24 March 1999 to 25 May 1999.

6.  On 3 June 1999, the applicant consulted with legal counsel and voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  In doing so, he admitted guilt to the offenses charged and acknowledged that he might encounter substantial prejudice in civilian life and that he might be ineligible for many or all benefits administered by the Veterans Affairs if an under other than honorable conditions (UOTHC) discharge were issued.  The applicant did not submit a statement in his own behalf.  

7.  On 19 October 1999, the separation authority approved the applicant’s request for discharge and directed an UOTHC discharge.  The applicant was discharged on 5 November 1999.  He completed 1 year, 11 months, and 22 days of active military service with 63 days of lost time.  His DD Form 214 shows he was discharged with a separation code of “KFS” (For the Good of the Service – In Lieu of Trial by Court-Martial) and issued a RE code of RE-4.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, 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.

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 separation program designators to be used for these stated reasons.  The regulation shows that the separation program designator “KFS” as shown on the applicant’s DD Form 214 specifies the narrative reason for discharge as “For the Good of the Service – In Lieu of Trial by Court-Martial” and that the authority for discharge under this separation program designator is “AR 635-200, Chapter 10.” 
Additionally, SPD/RE Code Cross Reference Table, dated October 1999, establishes RE Code 4 as the proper reentry code to assign to soldiers separated for this reason.

10.  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 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.  

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

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s DD Form 214 shows he was discharged with a separation code of “KFS” (For the Good of the Service – In Lieu of Trial by Court-Martial) and was assigned a RE code of “4” in accordance with the governing regulation in effect at the time.

2.  The RE code of "4" issued to the applicant is not waivable and does not allow him to continue Army service.

3.  Records show the applicant should have discovered the error or injustice now under consideration on 5 November 1999; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 5 November 2002. However, the applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to file in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

JNS_____  MDM_____  BJE_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented and the merits of this case are insufficient to warrant the relief requested, and therefore, it would not be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  

		John N. Slone_________
		        CHAIRPERSON

INDEX

CASE ID	AR2003090316	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20031118	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	Mr. Chun	
ISSUES         1.	100.0300	
2.		
3.		
4.		
5.		
6.