RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  20 February 2008
	DOCKET NUMBER:  AR20070014166 


	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.  


Ms. Catherine C. Mitrano

Director

Mr. Mohammed R. Elhaj

Analyst


The following members, a quorum, were present:


Mr. Patrick H. McGann, Jr.

Chairperson

Ms. Eloise C. Prendergast

Member

Mr. Michael J. Flynn

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 correction of her records as follows:

	a.  Item 26 (Separation Code) from "KFS" to a more favorable code; 

	b.  Item 27 [Reentry Code (RE Code)] from "RE-4" to a more favorable one; and

	c.  Item 28 (Narrative Reason of Separation) from "In Lieu of Trial By Court-Martial" to a more favorable reason. 

2.  The applicant states that she believes charges were preferred against her when she was financially vulnerable, a single parent, and trying to live on a sergeant's pay in a high cost area.  She further adds that the Staff Judge Advocate (SJA) counsel was unprofessional and inadequate.  She concludes that the charges were filed against her due to disagreements and poor command climate within her unit that influenced her commander to file charges against her.

3.  The applicant provided the following additional documentary evidence in support of her application:

	a.  Self-authored letter, dated 20 September 2007;

	b.  DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 3 June 2003;

	c.  Character reference letter, dated 12 April 2007;

	d.  Letter, dated 13 July 2007, Review Board Agency, approval of the applicant's discharge upgrade; and

	e.  DD Form 214, dated 3 June 2003 (Honorable Discharge). 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, correction of the applicant's RE-code, Narrative Reason for Separation, and Separation Code, to more favorable codes that correspond with her recently upgraded discharge.


2.  Counsel states that the poor command climate in the applicant’s unit led to a strained relationship between the unit administrative officer and the applicant.  At the same time, the applicant was encountering financial difficulties as a result of receiving pay and allowances at the wrong rank and grade (which resulted from an earlier demotion).  Despite the applicant's efforts in resolving the incorrect pay issue, charges were filed against her.  Her legal defense did not provide adequate support and she was subsequently forced to request discharge in lieu of trial by court-martial.

3.  Counsel did not provide additional documentary evidence in support of the applicant's request. 

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows that she enlisted in the U.S. Army Reserve (USAR) on 4 June 1979.  She completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 95B (Military Policeman).  She subsequently executed a series of extensions and/or reenlistments in the USAR and the Virginia Army National Guard (VAARNG).  She also held MOS 71D (Legal Specialist) and MOS 75B (Personnel Administration Specialist) throughout her military service.

2.  The applicant's records further show that she was promoted to the grade of staff sergeant (SSG)/E-6 on 1 October 1997.  Additionally, the applicant's DA Form 1059 (Service School Academic Evaluation Report), dated 17 April 1998, shows she was academically eliminated from the Basic Noncommissioned Officer Course (BNCOC) due to multiple test failures.  Subsequently, on 21 December 1998, U.S. Total Army Personnel Command [now known as Human Resources Command (HRC), St. Louis, Missouri], published Orders   355-6 revoking the applicant's promotion to SSG/E-6.

3.  The applicant's awards and decorations include the Meritorious Service Medal, the Army Commendation Medal (2nd Award), the Army Achievement Medal (4th Award), the Army Good Conduct Medal (3rd Award), the National Defense Service Medal (2nd Award), the Armed Forces Reserve Medal, the NCO Professional Development Ribbon (with Numeral 2), and the Marksman Marksmanship Qualification Badge with Rifle Bar.  Her records do not show any significant acts of valor during her military service.



4.  On 12 March 2001, the applicant was ordered to active duty in Active Guard Reserve (AGR) status, in the grade of sergeant (SGT)/E-5, and was assigned to the 154th Legal Support Organization, Alexandria, Virginia, as a Legal NCO.

5.  The applicant's record is void of the specific facts and circumstances concerning the events that led to her discharge from the Army.  However, the record contains a memorandum, dated 19 May 2003, where the separation authority approved the applicant's discharge under the provisions of chapter 10 of  Army Regulation 635-200 (Personnel Separations), in lieu of a Court-Martial.  This memorandum further states that the separation authority ordered the applicant reduced to the lowest enlisted grade and furnished an Other Than Honorable Conditions Discharge Certificate.  The separation authority also ordered her DD Form 214 contain the entries "KFS" as her Separation Code, "RE-4" as her RE code, and "discharge in lieu trial be a court-martial" as the reason for separation.

6.  On 3 June 2003, the applicant was discharged accordingly.  The DD Form 214 she was issued at the time of her discharge shows she was discharged under other than honorable conditions in accordance with chapter 10 of Army Regulation 635-200.  Item 26 of her DD Form 214 shows the entry "KFS," Item 27 shows the entry "4," and Item 28 shows the entry "In lieu trial by Court-Martial."  This form also confirms she completed 11 years, 8 months, and 5 days of creditable active military service. 

7.  In her self-authored statement, dated 20 September 2007, the applicant states that her career ended under the duress of faulty pursuit and prosecution charges against her.  She further adds that she was vindicated by her unit administrator despite her efforts working with the Defense Finance and Accounting Service (DFAS) and that she received inadequate legal support from a counsel who was not only pressured, but also scared her daughter to urge her (the applicant) into accepting the administrative discharge.  She concludes that she was confused, pressured, mistreated, and very concerned for the welfare of her daughter.  

8.  The applicant submitted a character reference letter, dated 12 April 2007, from an Attorney who remarked on the applicant's professionalism, hard work, and dedication.  He further stated that the applicant's unit of assignment had a poor command climate and that he believes the applicant's unit did not treat her fairly.  He concluded that he still believes that the applicant's "punishment" was harsh.

8.  On 7 March 2007, the Army Discharge Review Board (ADRB) upgraded the applicant's discharge to an honorable discharge.  However, the ADRB found that the reason for discharge was both proper and equitable and chose not change the applicant's Narrative Reason for Separation or SPD code.

9.  Army Regulation 635-200 (Personnel Separations) 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, 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.

10.  Army Regulation 635-200 states, in pertinent part, 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 (Regular Army and Army Reserve Enlistment Program), covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the US Army Reserve.  Table 3-1 included a list of the Regular Army Reenlistment Eligibility Codes (RE codes):

	a.  RE–1, applies to Soldiers completing their term 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; and

	c.  RE-4 applies to Soldiers separated from last period of service with a nonwaivable disqualification.

11.  Army Regulation 635-5-1 (Separation Program Designator Codes) states that the Separation Program Designator (SPD) codes are three-character alphabetic combinations, which identify reasons for, and types of separation from active duty.  The primary purpose of SPD codes is to provide statistical accounting of reasons for separation.  They are intended exclusively for the internal use of DOD and the military services to assist in the collection and 
analysis of separation data.  The "KFS" SPD code is the correct code for Soldiers separating under chapter 10 of Army Regulation 635-200, in lieu of trial by Court-Martial.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her Separation Code, RE code, and Narrative Reason for Separation are unjust and should be corrected.

2.  In the absence of the facts and circumstances surrounding the applicant’s discharge proceedings, it is presumed that the discharge proceedings were conducted in accordance with law and regulation applicable at the time.  

3.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by Court-Martial.  The applicant voluntarily requested, without coercion, discharge from the Army in lieu of trial by Court-Martial.  All requirements of law and regulation were presumably met, and the rights of the applicant were presumably fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects her overall record of service.

4.  There is no evidence in the available records nor did the applicant provide documentation to substantiate what she described as poor or inadequate legal counsel.  The applicant was discharged in accordance with chapter 10 of Army Regulation 635-200, in lieu of trial by Court-Martial.  Absent the trial by Court-Martial, there was no fundamental reason to process her discharge.  The underlying reason for her discharge was her trial by Court-Martial.  She chose to request separation instead.  Therefore, the only valid reason for separation permitted under this chapter is "In Lieu of Trial by Court-Martial."

5.  Evidence of record confirms that the applicant’s RE code was assigned based on the fact that she was separated under the provisions of chapter 10 of Army Regulation 635-200, in lieu of trail by Court-Martial.  The RE code associated with this type of discharge is "RE-4" and the SPD code associated with this type of discharge is "KFS."  Therefore, the applicant received the appropriate RE and SPD codes associated with her discharge.

6.  The Army Board for Correction of Military Records (ABCMR) does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  In order to justify correction of a military record the applicant must, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__phm___  __ecp___  __mjf___  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.



						Patrick H. McCann, Jr.
______________________
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

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

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.