MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 10 October 2002
         DOCKET NUMBER: AR2002078731

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Mr. Raymond J. Wagner		Chairperson
Mr. Roger W. Able		Member
Mr. John T. Meixell		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: In effect, that her general, under honorable conditions discharge be upgraded to an honorable discharge; that the reason for her discharge be changed to Secretarial Authority; and that her reentry (RE) code be changed from RE-3 to RE-1.

APPLICANT STATES: In effect, that her discharge should be upgraded because she was assaulted and any action she took was in self-defense. She also claims that she was coerced into requesting a discharge for the good of the service/in lieu of trial by court-martial and did not understand what she was signing. She claims that she was not offered time to read the documents or explanation given to her in connection with her discharge processing. In support of her application, she submits a memorandum from the Professor of Military Science at Bowie State University, Bowie, Maryland, supporting a change to her RE-3 code.

EVIDENCE OF RECORD: The applicant's military records show:

She entered active duty in the Regular Army on 4 December 1992, reenlisted on 27 September 1995, and served for 3 years, 6 months, and 18 days before being discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service/in lieu of trial by court-martial.

The applicant’s record shows that the highest grade she attained while serving on active duty was specialist/E-4 and it documents no acts of valor, significant achievement, or service warranting special recognition. In addition, the record reveals no disciplinary history prior to the incident that led to her discharge.

On 19 March 1996, a court-martial charge was preferred against the applicant for three specifications of violation of Article 91 of the Uniform Code of Military Justice (UCMJ) for the following offenses: assaulting a noncommissioned officer in the execution of his duties; disobeying the lawful order of a noncommissioned officer; and being disrespectful in language and deportment toward a noncommissioned officer in the execution of his duties.

On 26 April 1996, the applicant consulted with legal counsel and after being advised of the basis for the contemplated trial by court-martial and the effects of an under other than honorable conditions (UOTHC) discharge, she voluntarily requested, in writing, to be discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service/in lieu of trial by court-martial. In this request, the applicant indicated that she was making the request of her own free will and that she had not been subjected to any coercion whatsoever by any person. She also acknowledged that in making the request, she was admitting guilt to at least one of the charges against her.

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On 13 May 1996, the appropriate authority approved the applicant’s request for discharge and directed that she receive an UOTHC discharge and that she be reduced to the lowest enlisted grade. On 18 June 1996, the applicant was discharged accordingly. The DD Form 214 issued to and signed by the applicant on the date of her discharge confirms that she received an UOTHC discharge under the provisions of chapter 10, Army Regulation 635-200, in lieu of trial by court-martial, and that she was assigned a Separation Program Designator (SPD) code of KFS and a reentry code of RE-3 code based on the authority and reason for her discharge.

On 14 August 2000, the Army Discharge Review Board (ADRB) provided the applicant partial relief by voting to upgrade her discharge to a general, under honorable conditions based on her overall record of service, which included a restoration of her rank and pay grade to specialist/E-4. However, it found that her misconduct diminished the quality of her service below that meriting a fully honorable discharge. The ADRB also determined that the reason for the applicant’s discharge was proper and equitable and it voted not to change it. Therefore, this action did not entail a change to the applicant’s RE-3 code.

The new DD Form 214 issued to the applicant subsequent to the ADRB action confirms that the characterization of the discharge was changed to general, under honorable conditions. However, the authority for discharge remained chapter 10, Army Regulation 635-200, and the narrative reason remained, In Lieu of Trial by Court-Martial. In addition, the SPD code in Item 26 (Separation Code) still contained the SPD code KFS and Item 27 (Reentry Code) still listed the RE code of RE-3.

On 5 April 2002, the Professor of Military Science, Bowie State University, submitted a request to Cadet Command, asking for a waiver of the applicant’s RE code. On 8 May 2002, the Commanding General (CG) of Cadet Command disapproved the request for a waiver of the applicant’s RE-3 code. The CG stated that the applicant’s background, which included her discharge from the Army in lieu of trial by court-martial, prevented her appointment as a commissioned officer.

On 26 June 2002, the Professor of Military Science, Bowie State University, Bowie, Maryland, prepared a memorandum to the Board that supported a change to the applicant’s RE-3 code. He stated that the applicant was one of his five top cadets and that her performance was top notch.

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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 states, in pertinent part, that the SPD code of KFS is the appropriate code to assign to soldiers separating under the provisions of chapter 10, Army Regulation 635-200, by reason of, In Lieu of Trial by Court-Martial. The SPD/RE Code Cross Reference Table contained in the regulation establishes that the RE code assigned to members assigned the SPD code of KFS as RE-3.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. The Board notes the applicant’s contentions that she was assaulted and acted in self-defense; that she was coerced into requesting a discharge for the good of the service/in lieu of trial by court-martial; and that she did not understand what she was signing. However, it finds insufficient evidence to support these claims.

2. The evidence of record confirms that the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. It also verifies that after consulting with defense counsel, the applicant voluntarily, and in writing, requested separation from the Army in lieu of trial by court-martial.

3. The Board finds that the applicant’s original discharge processing was accomplished in accordance with the applicable laws and regulations in effect at the time. Further, it is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

4. In addition, the Board notes and concurs with the ADRB decision to upgrade the applicant’s discharge to general, under honorable conditions based on her overall record of service. It also agrees with the ADRB determination that her misconduct diminished the quality of her service below that warranting a fully honorable discharge and that the reason for her discharge was proper and equitable. Thus, the Board concludes that the revised discharge granted by the ADRB accurately reflects her overall record of service and the reason for her discharge, and it should not be further upgraded or changed at this time.

5. The evidence of record also confirms that the RE-3 code assigned the applicant was based on the authority and reason for her discharge, and it finds that it was and still is applicable. Therefore, it finds no evidentiary basis for changing it at this time.

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.

7. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__RJW__ __RWA__ __JTM__ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2002078731
SUFFIX
RECON
DATE BOARDED	2002/10/10
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	1996/06/18
DISCHARGE AUTHORITY	AR 635-200
DISCHARGE REASON	In lieu of Court-Martial
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 4	100.0300
2. 189	110.0000
3.
4.
5.
6.