IN THE CASE OF:	  

		BOARD DATE:	  20 October 2010

		DOCKET NUMBER:  AR20100012659 


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 change of his reentry eligibility (RE) code from "4" to "3."

2.  The applicant states:

* His RE code is not unjust
* An RE code 3 would be beneficial for himself and his family
* He would like to join the Army National Guard or active duty upon his graduation from college

3.  The applicant provides no documentary evidence in support of his application.

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 August 2000 and he was awarded military occupational specialty 11B (infantryman).  On 11 July 2001, with intent to remain away permanently, the applicant absented himself from his unit and remained so absent in desertion until 14 October 2005.  Charges were preferred against him for desertion on 19 October 2005.  The applicant requested discharge in lieu of trial by court-martial on 3 November 2005.  He was subsequently discharged on 6 December 2005 under the provisions of Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), chapter 10, in lieu of trial by court-martial.  He had served a total of 1 year, 1 month, and 2 days of total active service with time lost from 11 July 2001 to 13 October 2005.

3.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the following:

* Item 25 (Separation Authority) shows the entry "AR [Army Regulation] 635-200, CHAP [chapter] 10"
* Item 26 (Separation Code) shows the entry "KFS"
* Item 27 (Reentry Code) shows the entry "4"
* Item 28 (Narrative Reason for Separation) shows the entry "IN LIEU OF TRIAL BY COURT-MARTIAL"

4.  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 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.

5.  Army Regulation 635-200 states, 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.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the U.S. Army Reserve (USAR).  Table 3-1 included a list of the RA RE codes:

	a.  RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable.  They are ineligible unless a waiver is granted.

	b.  RE-4 applies to Soldiers who are separated from their last period of service with a nonwaivable disqualification.  They are ineligible for enlistment.

6.  The SPD/RE Code Cross Reference Table, dated 31 March 2003, shows that Soldiers assigned an SPD code of "KFS" will be assigned an RE code of "4."

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant’s RE code was assigned based on his voluntary discharge under the provisions of Army Regulation 635-200, chapter 10.  The RE code associated with this type of discharge is an "RE-4."  Therefore, the applicant received the appropriate RE code based on the authority and narrative reason for separation.

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 that 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)                                         AR20100012659



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ABCMR Record of Proceedings (cont)                                         AR20100012659



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