RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 20 October 2005 DOCKET NUMBER: AR20050001859 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 Mr. John J. Wendland, Jr. Analyst The following members, a quorum, were present: Mr. John T. Meixell Chairperson Mr. James B. Gunlicks Member Ms. Jeanette R. McCants 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, in effect, that his Reentry (RE) Code be corrected from an RE-4 to an RE-3. 2. The applicant states, in effect, that he did not receive a court-martial under the Uniform Code of Military Justice (UCMJ), but was out-processed pending a court-martial. He requests correction of his RE Code because he desires to reenter the U.S. Army and RE-4 is not a waiverable RE Code. 3. The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), with an effective date of 20 November 2001; DA Form 3975-R-E (Military Police Report), dated 20 July 2000; and a letter from the Chief, Policy and Eligibility Inquiries Branch, Retention Management Division, Headquarters, U.S. Total Army Personnel Command, Alexandria, Virginia, dated 26 August 2003. CONSIDERATION OF EVIDENCE: 1. The applicant is requesting correction of an alleged error which occurred on 20 November 2001, the date of his discharge from the U.S. Army. The application submitted in this case is dated 31 January 2005. 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's records show that he initially enlisted in the U.S. Army Reserve on 8 July 1998. He entered active duty in the Regular Army on 30 June 1999 for a period of 3 years, completed basic combat training and advanced individual training, was awarded military occupational specialty 11B (Infantryman), and achieved the rank of private first class. At the time of his discharge the applicant had completed 2 years, 3 months, and 6 days total active service. The record documents no acts of valor, significant achievement, or service warranting special recognition, and confirms that the awards he received during his active duty tenure were the Army Service Ribbon and Parachutist Badge. 4. A review of the applicant's records shows that, on 27 July 2000, he submitted a request for discharge under the provisions of chapter 10 of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) to the commander of the Special Processing Company (SPC), U.S. Army Personnel Control Facility (USA PCF), U.S. Army Armor Center and Fort Knox, Fort Knox, Kentucky. In his request, the applicant acknowledged that he was voluntarily requesting discharge in lieu of trial by court-martial because of charges that had been preferred against him under the UCMJ, which authorized the imposition of a bad conduct or dishonorable discharge. The charges against the applicant were preferred under Article 86, UCMJ, for his being absent without leave, from on or about 6 June 2000, to on or about 21 July 2000. 5. The applicant’s records show that, on 27 July 2000, he consulted with counsel. His counsel also certified that he had advised the applicant of the basis for the contemplated trial by court-martial under circumstances which could lead to a bad conduct or dishonorable discharge, of the effects of the request for discharge, and the rights available to the applicant. 6. On 7 November 2001, the colonel in command of Headquarters, U.S. Army Garrison, U.S. Army Armor Center and Fort Knox, Fort Knox, Kentucky, approved the applicant’s request for discharge under the provisions of chapter 10 of Army Regulation 635-200 and directed that the applicant be reduced to the rank of private/pay grade E-1 and issued a discharge under other than honorable conditions. 7. The DD Form 214 issued to the applicant upon his discharge from the U.S. Army shows the separation authority was chapter 10, Army Regulation 635-200, and the reason for his separation was in lieu of trial by court-martial. Based on the authority and reason for his separation, the applicant was assigned a separation program designator (SPD) code of KFS and a Reentry code of RE-4. 8. The applicant provides copies of a Military Police Report and his discharge document in support of his application. These documents substantiate the reasons and type of discharge the applicant received. The applicant also provides a copy of a letter from the Commander, U.S. Total Army Personnel Command, in response to his request to change his RE code. This letter shows the applicant's RE code of RE-4 was verified, deemed appropriate, and determined to be administratively correct. 9. Army Regulation 635-5-1 (SPD Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identifies the SPD code of KFS as the appropriate code to assign Regular Army enlisted Soldiers who are voluntarily discharged under the provisions of chapter 10, Army Regulation 635-200, based upon a request for discharge in lieu of trial by court-martial. 10. Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program), in effect at the time of the applicant's discharge, provides, in pertinent part, 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. RE-4 applies to persons who have a non-waivable disqualification and may not request reentry. The Army regulation further provides that, prior service Army personnel will be advised that RE codes may be changed only if they are determined to be administratively incorrect. DISCUSSION AND CONCLUSIONS: 1. The applicant’s request for change to the RE-4 code that he received in conjunction with his discharge from the U.S. Army and the supporting evidence he provided were carefully considered. 2. The evidence of record confirms the applicant was voluntarily discharged in lieu of trial by court-martial. Further, the applicant’s separation processing was accomplished in accordance with the applicable regulation. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. As a result, his separation was proper and equitable, and the RE-4 code he received was appropriately assigned based on the authority and reason for his separation. As a result, the RE-4 code assigned at the time of the applicant's discharge was, and remains, valid. 3. 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. 4. Records show the applicant should have discovered the alleged error or injustice now under consideration on 20 November 2001; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 19 November 2004. 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 __JTM __ __JBG_ _ __ JRM__ 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. ____JOHN T. MEIXELL______ CHAIRPERSON INDEX CASE ID AR20050001859 SUFFIX RECON YYYYMMDD DATE BOARDED 20051020 TYPE OF DISCHARGE UOTHC DATE OF DISCHARGE 20011120 DISCHARGE AUTHORITY AR 635-200, Chapter 10 DISCHARGE REASON In Lieu of Trial by Court-Martial BOARD DECISION DENY REVIEW AUTHORITY Mr. Chun ISSUES 1. 100.0300.0000 2. 3. 4. 5. 6.