IN THE CASE OF: BOARD DATE: 2 December 2010 DOCKET NUMBER: AR20100013966 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 (RE) code be changed. 2. The applicant states his father decided to leave his mother after 27 years of marriage with no warning, no income, and no support. He did what he could to support his family while on active duty but could not do that much. So he decided to depart absent without leave (AWOL). He knows this is no excuse, but would like the opportunity to again be a part of the military. He adds that since his discharge he has not been in any trouble and has worked as a firefighter and emergency technician for two hospitals. 3. The applicant does not provide any additional documentation. 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’s military records show that he enlisted in the Regular Army on 14 July 2004 and was awarded the military occupational specialty of infantryman. 3. The applicant departed AWOL on 13 June 2005 and remained absent until he surrendered to military authorities on 4 November 2005. 4. On 28 November 2005, the applicant's commander notified him of his intent to recommend his discharge due to misconduct based upon his AWOL and of his rights in conjunction with that recommendation. 5. The applicant waived his rights with the exception to consulting counsel. 6. The applicant's commander then forwarded a recommendation to discharge the applicant for misconduct and that recommendation was approved by the appropriate authority. 7. Accordingly, the applicant was given a general discharge on 5 December 2005 due to misconduct, commission of a serious offense under the provisions of Army Regulation 635-200 (Enlisted Separations), paragraph 14-12c. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was assigned a Separation Code of "JKQ" and an RE code of RE-3. 8. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Paragraph 14-12c applies to the separation of individuals who committed a serious military or civil offense, if the specific circumstance of the offense warrant separation and a punitive discharge would be authorized for the same or a closely related offense under the manual for courts-martial. An absentee returned to military control from an AWOL or desertion status may be separated for commission of a serious offense. 9. Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program), table 3-6, lists the various RE codes and describes the reason(s) a soldier is assigned a particular code. The code of RE-1 is assigned to individuals who complete an initial term of active service and who were fully qualified to reenlist when last separated. The code of RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable. 10. The SPD/RE Code Cross Reference Table directs that the Separation Code "JKQ" be assigned the RE code RE-3. DISCUSSION AND CONCLUSIONS: 1. The applicant now states his father left his mother and he went AWOL to provide assistance to her. However, the time to bring up matters of mitigation was while he was on active duty, not at this late date. 2. If the applicant had informed his commander that he was having a hardship situation and brought evidence to support his contention, in all likelihood he would have been able to complete his enlistment. 3. But since the applicant did not bring up any matters of mitigation when he returned from being AWOL and he did not contest being discharged as evidenced by his waiving his rights, he was properly discharged and assigned an RE-3 code. 4. While the applicant's desire to serve his country again is commendable, it is insufficient to warrant changing a properly-assigned RE code. 5. In view of the foregoing, there is no basis for granting the applicant’s request. 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) AR20100013966 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20100013966 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1