RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 17 May 2007 DOCKET NUMBER: AR20060016179 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. Gerard W. Schwartz Acting Director Ms. Wanda L. Waller Analyst The following members, a quorum, were present: Mr. Eric Andersen Chairperson Mr. Antonio Uribe Member Mr. Rodney Barber Member 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 (RE) code be changed. 2. The applicant states that his exit from the military was for a good reason, but the wrong way. He states, in effect, that a court order for child support and a birth certificate were not entered in his records when he enlisted in the Army and that he was charged with abandonment of his son. He contends that no one fixed this mistake when he enlisted, that he made terrible mistakes, and that he is truly sorry. 3. The applicant provides a statement of support from the Commander of the American Legion in Fort Oglethorpe, Georgia. CONSIDERATION OF EVIDENCE: 1. The applicant is requesting correction of an alleged error which occurred on 31 January 2002. The application submitted in this case is dated 9 August 2006. 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 limitations 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 on 12 March 2001. He went absent without leave on 2 April 2001 and returned to military control on 21 June 2001. On 31 January 2002, the applicant was discharged under other than honorable conditions under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. 4. Item 25 (Separation Authority) on the applicant's DD Form 214 shows the entry, "AR [Army Regulation] 635-200, CHAP [chapter] 10." Item 26 (Separation Code) on his DD Form 214 shows the entry, "KFS." Item 27 (Reentry Code) on his DD Form 214 shows the entry, "4." Item 28 (Narrative Reason for Separation) on his DD Form 214 shows the entry, "IN LIEU OF TRIAL BY COURT-MARTIAL." 5. Army Regulation 635-5-1 (Separation Program Designator 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 states the reason for discharge based on separation code “KFS” is “In lieu of trial by court-martial” and the regulatory authority is Army Regulation 635-200, chapter 10. 6. 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 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. 7. RE-4 applies to persons separated from their last period of service with a non-waivable disqualification. 8. RE-3 applies to persons who are not qualified for continued Army service, but the disqualification is waivable. 9. The Separation Program Designator Code/Reentry Code Cross Reference Table, dated 8 September 2005, shows that Soldiers given an SPD [Separation Program Designator] of "KFS” will be given an RE code of 4. DISCUSSION AND CONCLUSIONS: 1. The applicant’s contentions were noted. However, his RE code was administratively correct and in conformance with applicable regulations at the time of his separation. 2. Records show the applicant should have discovered the alleged error now under consideration on 31 January 2002; therefore, the time for the applicant to file a request for correction of any error expired on 30 January 2005. 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 timely file in this case. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING EA_____ __AU___ __RB____ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that 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. 2. As a result, the Board further determined that there is no evidence provided which shows that it would 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. Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned. ____Eric Andersen_____ CHAIRPERSON INDEX CASE ID AR20060016179 SUFFIX RECON DATE BOARDED 20070517 TYPE OF DISCHARGE DATE OF DISCHARGE DISCHARGE AUTHORITY DISCHARGE REASON BOARD DECISION DENY REVIEW AUTHORITY ISSUES 1. 100.0300 2. 3. 4. 5. 6.