IN THE CASE OF: BOARD DATE: 30 August 2012 DOCKET NUMBER: AR20120004098 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 to RE-1. 2. The applicant states: * in 2008, the Army Discharge Review Board (ADRB) upgraded his characterization of service from general to honorable * at that time he did not understand the impact of the RE code; thus, he failed to ask for that to be upgraded at the same time * he served in the Army from 1999 to 2004 * he completed back-to-back combat tours in Afghanistan and Iraq * in 2004, he began a relationship with his company commander and was forced to separate based on fraternization or be subjected to a court-martial * it was wrong for him to be in this relationship and he accepted the consequences of his actions * his former company commander is now his wife of 6 years and they have two children * since his separation he has obtained a bachelor's degree and he is a teacher in an inner-city school * he strongly desires to enlist and continue to serve his country 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. The applicant enlisted in the Regular Army on 2 March 1999. He trained as a human resources specialist. On 25 April 2002, he was honorably discharged for immediate reenlistment. He reenlisted on 26 April 2002 for a period of 3 years. He served in Afghanistan from 26 June 2002 to 20 December 2002. He attained the rank of sergeant on 1 June 2003. He served in Iraq from 4 September 2003 to 10 April 2004. 3. Special court-martial charges were preferred against the applicant for violating a lawful general regulation (having a sexual relationship with an officer); wrongfully and knowingly allowing himself to be videotaped performing sexual acts with his company commander, which conduct was of a nature to bring discredit upon the Armed Forces; and adultery. On an unknown date, he requested discharge in lieu of trial by court-martial. The separation authority approved his request on 27 August 2004 and directed the issuance of a general discharge. He was discharged on 20 September 2004 under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 10, in lieu of trial by court-martial. He completed a total of 5 years, 6 months, and 19 days of creditable active service. 4. On 11 March 2008, the ADRB upgraded his general discharge to honorable. 5. His DD Form 214 shows the following: * item 25 (Separation Authority) – "ARMY REGULATION 635-200, CHAPTER 10" * item 26 (Separation Code) – "KFS" * item 27 (Reentry Code) – "4" * item 28 (Narrative Reason for Separation) – "IN LIEU OF TRIAL BY COURT-MARTIAL" 6. 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 SPD codes 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. 7. Army Regulation 635-200 states 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 (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 RE codes. a. RE-1 applies to persons completing an initial term of active service who were fully qualified when last separated. b. RE-4 applies to Soldiers who are separated from their last period of service with a nonwaivable disqualification. They are ineligible for enlistment. 8. The SPD/RE Code Cross Reference Table, dated 31 March 2003, shows that Soldiers given an SPD code of KFS will be given an RE code of 4. DISCUSSION AND CONCLUSIONS: 1. The applicant's contentions were carefully considered. However, the evidence of record confirms his RE code was assigned based on his discharge under the provisions of Army Regulation 635-200, chapter 10. The RE code associated with this type of discharge is RE-4. Therefore, the applicant received the appropriate RE code associated with his discharge. 2. The applicant's RE code was administratively correct and in conformance with applicable regulations at the time of his separation. Therefore, there is no basis for granting the applicant's 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 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) AR20120004098 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20120004098 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1