IN THE CASE OF: BOARD DATE: 19 February 2009 DOCKET NUMBER: AR20080015930 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, in effect, an upgrade of her under other than honorable conditions (UOTHC) discharge and a change in her Reentry (RE) Code. 2. The applicant states she wants to rejoin the Army. She states she followed the advice of her chain of command, but received no help while undergoing a medical evaluation board (MEB) at Fort Lee, VA. 3. The applicant provides: a. A copy of an undated statement showing treatment from a chiropractor starting on 9 September 2005. b. A copy of DA Form 3982 (Medical and Dental Appointment), dated 27 October 2005, showing an appointment with Physical Exams/Active Duty Clinic. c. A copy of DA Form 3982, dated 28 October 2005, showing an appointment with the Physical Evaluation Board Liaison Officer. d. A copy of DA Form 3982, dated 15 November 2005, showing an appointment with the Troop Medical Clinic for “Part 2 Physical Exam.” e. A copy of a 2-page AIT (Advanced Individual Training) physical examination instruction handout. f. A copy of a 3-page MEB counseling statement. g. A copy of a congressional response to the applicant’s inquiry/request for assistance concerning an alleged back injury suffered during “boot camp.” The letter advises the applicant that the Privacy Act prevents her Representative-in-Congress from assisting her without proper authorization. h. A copy of her DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period 7 June 2005 through 7 June 2006. It shows service of 9 months and 28 days, and 62 days of lost time due to absence without leave (AWOL) from 4 January 2006 through 6 March 2006. It also shows an UOTHC discharge under the provisions of chapter 10, Army Regulation 635-200, by reason of “in lieu of trial by court-martial.” It shows an RE Code of “4.” i. A copy of a 24 October 2005 memorandum from the U.S. Army Medical Department Activity (MEDDAC), Fort Lee, stating the applicant has been referred to an MEB, and requesting pertinent personnel documents. CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the U.S. Army Reserve Delayed Entry Program (DEP) for 8 years on 2 October 2004. On 6 June 2005, she was discharged from the DEP and enlisted in the Regular Army for 4 years on 7 June 2005. She enlisted for training in military occupational specialty (MOS) 92A (Automated Logistical Specialist). 2. The applicant was assigned to Fort Lee for her advanced individual training in MOS 92A. Her record contains no information concerning medical problems while at Fort Lee. What is known of her service at Fort Lee is that she absented herself from her unit on or about 0600 hours, 4 January 2006 and remained absent until she surrendered to military authorities at Fort Sill, OK, on or about 1510 hours, 6 March 2006. 3. The applicant was assigned to the Personnel Control Facility (PCF) at Fort Sill. On 9 March 2006, she was formally charged with AWOL. On 10 March 2006, she consulted with counsel and voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. She stated that she acknowledged she was guilty of the charge against her which authorized the imposition of a bad conduct or dishonorable discharge, and that she did not desire rehabilitation, nor had she any desire for further military service. She stated that she understood the nature and consequences of the UOTHC discharge she might receive. She declined to submit a statement in her own behalf. 4. The applicant’s request was forwarded through command channels to the approving authority who, on 17 May 2006, approved her request for discharge and directed she receive a UOTHC discharge. 5. On 7 June 2006, the applicant was discharged. 6. The applicant petitioned the Army Discharge Review Board (ADRB) seeking a discharge upgrade. The ADRB, after considering her case on 15 August 2007, denied her request. 7. In her petition to the ADRB, the applicant related the following explanation: a. She hurt her back in basic training at Fort Jackson, SC, but she was only 1 week away from graduation, so she did not go to the Troop Medical Clinic for fear of being recycled. b. At Fort Lee, she began going on sick call because her back was getting worse and her legs began to feel numb and tingly; however, the doctors could find nothing wrong with her. c. She went on convalescent leave in September 2005 and took an MRI (magnetic resonance image) with her. Although Army doctors found no abnormality, a chiropractor reviewed the image and found herniated disks. He prescribed a long course of spinal manipulations; Army doctors prescribed vicodin, a narcotic painkiller. d. When she returned to Fort Lee, Army doctors would not accept the diagnosis and treatment prescribed by the chiropractor because he was a civilian. The Army doctors just prescribed more medicines which made her sick. e. Finally in October 2006, Army doctors diagnosed a herniated disk and recommended referral to an MEB. She was transferred to a Medical Holding Company and told the MEB process would take a long time. She wrote to her member of Congress for help. f. During the Christmas leave period, she was allowed to go home. When it was time to come back, she remained home and was subsequently reported AWOL. 8. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. A discharge under other than honorable conditions is normally considered appropriate. 9. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System according to the provisions of Title 10, U.S. Code, Chapter 61 and Department of Defense Directive (DODD) 1332.18 . It sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations. It provides that a Soldier who is charged with an offense or is under investigation for an offense for which he/she could be dismissed or given a punitive discharge may not be referred for disability processing. 10. Pertinent Army regulations provide that, prior to discharge or release from active duty, Soldiers will be assigned RE codes based on their service records or the reason for discharge. Army Regulation 601-210 covers eligibility criteria, policies, and procedures for enlistment and processing into the Army. Pertinent chapters include a list of armed forces RE Codes. RE-4 applies to individuals who are ineligible to reenter the Army. DISCUSSION AND CONCLUSIONS: 1. The applicant requests a discharge upgrade and a change in her RE Code. 2. The applicant voluntarily requested separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial. Her request was administratively correct and in conformance with applicable regulations. There is no indication that the request was made under coercion or duress. 3. The applicant's request for a chapter 10 discharge, even after appropriate and proper consultation with a military lawyer, tends to show she wished to avoid the court-martial and the punitive discharge that she might have received. 4. The applicant’s RE Code is correct for the authority and reason for her discharge. 5. There is no evidence of the applicant’s physical disability processing in the available record. She may have had a back condition which warranted referral to the disability evaluation system; however, regulations provide that a Soldier may not be referred for disability processing, or if referred, processing will be withdrawn should that Soldier be charged with an offense or come under investigation for an offense for which he/she could be dismissed or given a punitive discharge. The applicant went AWOL rather than submit to the physical disability evaluation system. In so doing, she relinquished her opportunity for disability evaluation. 6. 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. 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) AR20080015930 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20080015930 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1