RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  5 April 2007
	DOCKET NUMBER:  AR20060012180 


	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.


	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, who was discharged under the provisions of Chapter 10 (Discharge in Lieu of Trial by Court-Martial), Army Regulation 635-200 (Enlisted Personnel) requests, in effect that the reason and character of her discharge be changed.

2.  The applicant essentially states that she was listed as absent without leave (AWOL), when in fact she was put back in the United States Army Reserve (USAR) during the supposed time she was AWOL.  She also states that she would like the reason for her discharge changed so that she can reenlist in the USAR, but that without a general or honorable discharge, she cannot do this. 

3.  The applicant provides no additional evidence in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 13 July 1995, the date of her discharge from the Regular Army.  The application submitted in this case is dated 31 August 2006.

2.  The applicant’s military records show that she initially enlisted in the USAR; however, on 21 May 1992, she enlisted in the Regular Army for a period of 
3 years.

3.  Although the facts and circumstances pertaining to the applicant’s discharge, i.e., her separation packet, are not contained in the available records, her military records do contain a properly constituted DD Form 214 that shows she was discharged under the provisions of Army Regulation 635-200, Chapter 10.  As she was in an entry level status at the time she went AWOL, her character of service was uncharacterized instead of under other than honorable conditions, which is normally considered appropriate for a discharge in lieu of trial by court-martial.

4.  Item 28 (Narrative Reason for Separation) of the applicant’s DD Form 214 has an entry of “In Lieu of Trial by Court-Martial”.  Her DD Form 214 also shows that she was assigned a Separation Program Designator (SPD) code of “KFS,” and an Reentry (RE) code of “3.”  Her DD Form 214 also essentially shows that she was AWOL from 1 October 1992 through 1 September 1994.

5.  On 10 November 2004, the Army Discharge Review Board denied the applicant’s petition to change the character and or reason for her discharge.

6.  The applicant essentially stated that she was listed as AWOL, when in fact she was put back in the USAR during the supposed time she was AWOL.  However, her military records clearly show that she enlisted in the Regular Army on 21 May 1992 for a period of 3 years.  There is no evidence in her military records, and the applicant did not provide any evidence which conclusively shows that her active duty commitment from 21 May 1992 through 20 May 1995 was altered by another enlistment contract.  

7.  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 trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.  

8.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies and procedures for enlistment and processing into the Regular Army and the United States Army Reserve.  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 Regular Army RE codes.  RE codes 1 and 2 permit immediate reenlistment if all other criteria are met.  An RE code of 3 applies to persons not qualified for continued Army service, but the disqualification is waivable.  An RE code of 4 indicates separation from the last period of service with a disqualification which cannot be waived and ineligibility for reenlistment.

9.  Army Regulation 635-5-1 (Separation Program Designator 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. Additionally, Table 2-3 (SPD/RE Code Cross Reference Table), AR 635-5-1 (Separation Documents) establishes RE Codes to be assigned for each SPD.  

10.  An SPD code of "KFS" applies to persons who are discharged in lieu of trial by court-martial under the provisions of Chapter 10, Army Regulation 635-200.  The SPD/RE Code Cross Reference Table shows that an RE code of 4 is the applicable RE code assigned for individuals separated in lieu of trial by court-martial.  An RE code of 4 indicates that the applicant was separated from his last period of service with a disqualification which cannot be waived and is ineligible for reenlistment.

11.  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.  The U.S. Court of Appeals, observing that applicants to the Army Discharge Review Board (ADRB) are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens that filing period, has determined that the 3 year limit on filing to the Army Board for Correction of Military Records (ABCMR) should commence on the date of final action by the ADRB.  In complying with this decision, the ABCMR has adopted the broader policy of calculating the 3-year time limit from the date of exhaustion in any case where a lower level administrative remedy is utilized.

12.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the reason and character of her discharge should be changed.

2.  The applicant’s contention that she was incorrectly listed as AWOL, and that she was put back in the USAR during the time she was AWOL is not corroborated by any evidence in her military records.  Evidence of record clearly shows that she enlisted in the Regular Army on 21 May 1992 for a period of 
3 years.  There is no evidence in her military records, and the applicant did not provide any evidence which shows that her active duty commitment from 21 May 1992 through 20 May 1995 was altered by another enlistment contract.  

3.  It is clear that the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  It is also clear that she voluntarily requested discharge from the Army in lieu of trial by court-martial.  The applicant did not provide any evidence which shows that any requirements of law and regulation were not met, or that her rights were not fully protected throughout the separation process.

4.  The applicant's RE code of “3,” which is technically incorrect as it should have been a “4,” which will be discussed later, is based on her reason for discharge and cannot be changed unless the applicant's narrative reason for discharge is changed.  Her narrative reason for discharge was based on her voluntary request for discharge in lieu of trial by court-martial, and the Board could find no basis upon which to change this reason.  Additionally, the Board found no basis to change her characterization from uncharacterized to general or honorable.  

5.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.  In view of the foregoing, there is no basis for granting relief to the applicant in this case.

6.  It was noted that the applicant’s RE code of “3” is not consistent with the narrative reason for her separation or her SPD code; in fact, she should have been issued an RE code of “4.”  However, it is the policy of this Board not to correct a record to reflect a change that will make the individual concerned worse off than before applying to the Board.  As a result, she is entitled to keep her 
RE code of “3.”  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__LS____  __JR____  ___SF __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that 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.




_____ Linda Simmons_______
          CHAIRPERSON
INDEX

CASE ID
AR20060012180
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070405
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
AR 15-185
ISSUES         1.
110.0200.0000
2.
100.0300.0000
3.

4.

5.

6.