IN THE CASE OF: BOARD DATE: 5 July 2011 DOCKET NUMBER: AR20110000599 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. He states: * by discharging him, the Army made the right decision * he believes the RE code 4 is unjust and should be RE code 3 * he wants to correct his mistakes and be a part of something that matters * he had received orders for Hawaii, but he was held after his class graduated for no apparent reason * he was told he was being held because he failed to take a tuberculosis (TB) shot * he was still held after receiving the shot and should not have been treated that way 3. He provides: * his DD Form 214 (Certificate or Release or Discharge from Active Duty) * two character references 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. He enlisted in the Regular Army on 9 August 2005. 3. Section IX (Assignment Information) of his Enlisted Record Brief shows: * 17 August 2005 – Company D, 3rd Battalion, 10th Infantry Training, Fort Leonard Wood, MO, Regular Army Trainee * 14 November 2005 – Company B, 169th Engineer Battalion, 1st Engineer Brigade, Fort Leonard Wood, MO, Incoming Personnel * 28 March 2006 – Personnel Control Facility, Special Processing Company, Fort Knox, KY, Incoming Personnel 4. Section IX does not show he was assigned to Hawaii and his official record does not contain orders assigning him to Hawaii. 5. A DD Form 458 (Charge Sheet), dated 30 March 2006, shows charges were preferred against the applicant for being absent without leave from on or about 23 January 2006 to on or about 28 March 2006. 6. On 30 March 2006, he voluntarily requested a discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10. He acknowledged he had not been subjected to coercion with respect to his request for discharge and he had been advised of the implications attached to his request. He acknowledged that prior to completing his request for discharge he had been afforded the opportunity to consult with appointed counsel and he was fully advised of the nature of his rights under the Uniform Code of Military Justice at the various possible stages of the proceedings, including those of appeal involved in a trial by court-martial. 7. He further acknowledged he understood that if his discharge request were approved, he might be discharged under conditions other than honorable. He acknowledged he understood that as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the Department of Veterans Affairs, and he might be deprived of his rights and benefits as a veteran under both Federal and State laws. He did not submit a statement on his own behalf. 8. On 12 April 2006, his company commander recommended approval with a discharge under other than honorable conditions. 9. On 19 April 2006, the separation authority approved his request for discharge in lieu of trial by court-martial under the provisions of Army Regulation 635-200, paragraph 10, discharge and directed that he receive an under other than honorable conditions characterization of service. 10. The DD Form 214 he was issued shows he completed a total of 6 months and 27 days of active military service. The DD Form 214 also shows his character of service as under other than honorable conditions; the separation authority as Army Regulation 635-200, chapter 10; the separation code as "JFS"; his RE code as RE-4; and the narrative reason for his separation as "in lieu of trial by court-martial." 11. On 19 February 2010, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge. He stated he made a mistake and did not have any documentation to prove he was right. 12. On 3 November 2010, the ADRB denied the applicant's request for an upgrade of his discharge. 13. The character references the applicant submitted were from law enforcement members of his community and a local veterans' service office executive director. These individuals note the applicant is a law-abiding citizen with a strong sense of right and wrong. 14. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized a discharge under other than honorable conditions is normally considered appropriate. 15. 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 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. Chapter 3 prescribes basic eligibility for prior-service applicants for enlistment and includes a list of Armed Forces RE codes. a. RE-1 applies to Soldiers completing their terms of active service who are considered qualified to reenter the U.S. Army. They are qualified for enlistment if all other criteria are met. b. 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. c. RE-4 applies to Soldiers who are separated from their last period of service with a nonwaivable disqualification. They are ineligible for enlistment. DISCUSSION AND CONCLUSIONS: 1. The applicant's contention that he was AWOL because he failed to take his TB shot in conjunction with assignment orders to Hawaii was carefully considered and found to be without merit. 2. There are no assignment orders to Hawaii in his records and he did not provide any orders to show he was pending assignment to Hawaii. His record does not contain and he did not submit any evidence that shows his failure to take a TB test delayed his departure to his next duty station. 3. His RE code is based on his reason for discharge and cannot be changed unless the applicant's narrative reason for separation is changed. His narrative reason for separation was based on his request for discharge in lieu of trial by court-martial. There is no evidence of record and the applicant did not provide any evidence as a basis to warrant a change to his reason for separation. 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) AR20110000599 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1