BOARD DATE: 8 February 2011 DOCKET NUMBER: AR20100019598 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 that his reentry eligibility (RE) code be changed from "4" to "3." 2. The applicant states he was young and immature and he developed a drinking problem which he has since overcome through alcohol counseling. He goes on to state he desperately wants to serve his country again and desires to have his RE code changed from "4" to "3." 3. The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty). 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. The applicant was born on 3 March 1982 and enlisted in the Regular Army on 31 August 2000 for a period of 3 years, training as a cannon crewman, and a cash enlistment bonus. He completed his one-station unit training at Fort Sill, Oklahoma, and was transferred to Fort Hood, Texas, for his first and only duty assignment. 3. On 16 May 2001, he received a general officer memorandum of reprimand for driving under the influence of alcohol. 4. On 23 May 2001, nonjudicial punishment was imposed against him for drinking under age. 5. On 2 October 2002, charges were preferred against him for: * being absent without leave (AWOL) from 25 November 2001 to 6 December 2001 * being AWOL from 1 to 6 February 2002 * failing to go to his place of duty (guard duty) * being AWOL from 4 to 8 April 2002 * failing to go to his place of duty (guard duty) * failing to go to his place of duty on 9 May 2002 * failing to go to his place of duty on 21 May 2002 * being AWOL from 15 to 22 July 2002 * being AWOL from 23 July 2002 to 6 August 2002 * two specifications of drinking under age * making a false official statement * wrongfully using marijuana * stealing another Soldier's television 6. On 19 November 2002 after consulting with defense counsel, the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, in lieu of trial by court-martial. In his request he indicated he was making the request of his own free will without coercion from anyone and that he was aware of the implications attached to his request. He also admitted he was guilty of the charges against him or of lesser included offenses which authorized the imposition of a bad conduct or dishonorable discharge. He acknowledged he understood he could receive a discharge under other than honorable conditions and he might be deprived of all benefits as a result of such a discharge. He further elected not to submit a statement or explanation in his own behalf. 7. On 4 December 2002, the appropriate authority (a major general) approved his request and directed that he be discharged under other than honorable conditions. 8. On 20 December 2002, he was discharged under other than honorable conditions under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. He completed 1 year, 7 months, and 19 days of total active service and had 9 months and 2 days of lost time due to AWOL. He was issued an RE code of "4" based on his separation code of "KFS." 9. 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 reason for discharge. 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. Chapter 3 prescribes basic eligibility for prior-service applicants for enlistment and includes a list of Armed Forces RE codes. 10. RE code "4" indicates a person is not qualified for continued Army service by virtue of being separated from the service with a nonwaivable disqualification. The applicable regulations direct that an RE code of "4" be issued for a separation code of "KFS" which indicates separation in lieu of trial by court-martial. DISCUSSION AND CONCLUSIONS: 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 failed to submit evidence that would satisfy the aforementioned requirement. 2. The applicant failed to show through the evidence submitted or the evidence of record that he was issued the wrong RE code at the time of his separation. 3. The applicant was separated under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial and was properly issued a separation code of "KFS" and an RE code of "4" in accordance with the applicable regulations. 4. Accordingly, there appears to be no basis to change his RE code as he requests. 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 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) AR20100019598 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20100019598 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1