RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            21 April 2005
      DOCKET NUMBER:   AR20040004317


      I certify that hereinafter is recorded the true and complete record
of the proceedings 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. Fred Eichorn                  |     |Chairperson          |
|     |Mr. Richard T. Dunbar             |     |Member               |
|     |Ms. Delia R. Trimble              |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, a change to the reentry (RE) code
she was assigned in conjunction with her discharge from the Regular Army
(RA).

2.  The applicant states, in effect, that she is presently serving in the
United States Army Reserve (USAR) and would like the opportunity to serve
on active duty as a member of the Active Guard Reserve (AGR) program.

3.  The applicant provides a self-authored letter, a letter of support from
the chief of staff of her USAR unit and an RE code waiver in support of her
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s record shows that at the time of her application to the
Board, she was serving as a member of the USAR, in the rank of sergeant
(SGT).  She is currently assigned to the 77th United States Army Regional
Readiness Command at Fort Totten, New York.

2.  The record confirms the applicant served on active duty in the RA from
30 July 1986 through 14 October 1987.

3.  On 1 September 1987, after court-martial charges were preferred against
her for violating Articles 121 and 123a of the Uniform Code of Military
Justice (UCMJ), by committing larceny through the unauthorized use of a
credit card and by making checks without sufficient funds, the applicant
voluntarily requested discharge for the good of the service under the
provisions of chapter 10,
Army Regulation 635-200.  In her request for discharge, the applicant
admitted guilt to the charges against her, or of a lesser included offense
that also authorized the imposition of a bad conduct discharge.

4.  On 14 October 1987, the applicant received an under other than
honorable conditions (UOTHC) discharge after completing 1 year, 2 months
and 14 days of active military service.  The separation document she was
issued confirms the authority for her separation was chapter 10, Army
Regulation 635-200 and the reason for her separation was for the good of
the service.  Based on the authority and reason for her discharge, the
applicant was assigned a separation program designator (SPD) code of JFS
and an RE code of RE-3.

5.  The Chief of Staff of the applicant’s unit provides a letter in support
of the applicant’s request.  This unit official praises the applicant’s
outstanding performance of duty and attests to her commitment to Army
values.  The Chief of Staff also states that the applicant’s service as a
member of the AGR program would be a benefit to the unit and a waiver of
her RE-3 code is necessary to for her apply.

6.  There is no indication in the applicant’s record that she has ever
applied for a waiver to enter the AGR program through proper USAR channels
and/or that this request was denied.   Further, there is no evidence
indicating that the applicant applied to the Army Discharge Review Board
(ADRB) requesting an upgrade of the characterization of her discharge from
the RA, or a change to the narrative reason for her separation from the RA
within the ADRB’s 15-year statute of limitations.

7.  Army Regulation 601-210 covers eligibility criteria, policies, and
procedures for enlistment and processing into the RA and USAR.  Chapter 3
of that regulation prescribes basic eligibility for prior service
applicants for enlistment.  That chapter includes a list of armed forces RE
codes, including RA RE codes.  RE-3 applies to persons who are not
considered fully qualified for reentry or continuous service at the time of
separation but the disqualification is waivable.

8.  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.

9.  The version of SPD code regulation in effect at the time of the
applicant’s discharge identified the SPD code of JFS as the appropriate
code to assign soldiers separated under the provisions of chapter 10, Army
Regulation 635-200, for the good of the service.  The version of Table 2-3
(SPD/RE Code Cross Reference Table) in effect at the time established RE-3
as the proper RE code to assign Soldiers separated with an SPD code of JFS.


10.  The current version of the SPD code regulation identifies the SPD code
of KFS as the proper code to assign members separated under the provisions
of chapter 10, Army Regulation 635-200, in lieu of court-martial, and
establishes RE-4 as the proper code to assign Soldiers separated with an
SPD code of KFS.

11.  Army Regulation 135-111 (The AGR Program) prescribes the policy and
procedures for the administration of the AGR program. It also provides Army
policy for the selection, utilization, and administration of Reserve
Component Soldiers for the AGR program.  Chapter 2 outlines the
qualification criteria for entry into the AGR program.

12.  Table 2-2 of the AGR regulation outlines waivable disqualifications
for entry into the program.  It states, in pertinent part, that an enlisted
Soldier ineligible for reenlistment or extension is disqualified unless the
disqualification can be waived under the appropriate
enlistment/reenlistment regulations.  It further specifies that if the
disqualification is waivable, application should be made under the
appropriate enlistment/reenlistment regulation.  Table 2-3 outlines
nonwaivable disqualifications for entry into the AGR program.  It states,
in pertinent part, that Soldiers who were (involuntarily) removed from
active duty for cause and Soldiers who resigned in lieu of an adverse
personnel action are ineligible for entry into the AGR program and this
disqualification may not be waived.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request for a waiver to the RE-3 code she received in
conjunction with her UOTHC discharge from the RA and the supporting
evidence she provided were carefully considered.  However, it appears if
the RE-3 code were the only reason for her disqualification from the AGR
program, it could be waived through normal USAR personnel channels.  The
applicant’s nonwaivable disqualification appears more likely based on her
having been discharged for cause in order to avoid a trial by court-
martial.  As a result, a complete review of her discharge was accomplished.


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

3.  The evidence of record further shows the applicant’s discharge
processing was accomplished in accordance with the applicable regulation.
All requirements of law and regulation were met and that the rights of the
applicant were fully protected throughout the separation process.  As a
result, her discharge was proper and equitable, and the RE-3 code she
received was appropriately assigned based on the authority and reason for
her discharge.

4.  Further, under current regulatory standards, an RE-4 representing a
nonwaivable disqualification is assigned to Soldiers who are discharged
under the provisions of chapter 10, Army Regulation 635-200, as was the
applicant.  As a result, the RE-3 code she was assigned is actually more
favorable than she would receive under current regulations and remains
valid.

5.  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

___RTD _  ___FE __  ___DRT _  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.




            ____Fred Eichorn________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040004317                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/04/21                              |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |1987/10/14                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |In Lieu of CM                           |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  189  |110.0000                                |
|                      2.|100.0300                                |
|4                       |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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