IN THE CASE OF:	  

	BOARD DATE:	  19 June 2008

	DOCKET NUMBER:  AR20080005820 


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, that the reentry (RE) code of 4 she was assigned at discharge be changed to RE-3.   

2.  The applicant states, in effect, that she requested to go on emergency leave while attending advanced individual training (AIT) due to the serious illness of her grandmother, who had no one to take care of her.  She states that her grandmother was in loco parentis and took care of her until she joined the Army.  She states that she explained her situation to her noncommissioned officers (NCOs), but they denied her leave.  She claims that she is now aware that Army regulations authorized her emergency leave based on the loco parentis status of her grandmother, and she should have been granted the leave.   

3.  The applicant provides her separation document (DD Form 214) in support of her application.  

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows that she enlisted in the Regular Army and entered active duty on 21 March 2007.  Her record documents no acts of valor, significant achievement, or service warranting special recognition.  

2.  On 31 October 2006, the applicant departed absent without leave (AWOL) from her AIT unit at Fort Leonard Wood, Missouri.  She remained away for 
34 days until surrendering to military authorities on 5 December 2006.  

3.  On 11 December 2006, a Charge Sheet (DD Form 458) was prepared preferring a court-martial charge against the applicant for violating Article 86 of the Uniform Code of Military Justice (UCMJ) by being AWOL from on or about
31 October 2006 to on or about 5 December 2006.  

4.  On 11 December 2006, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum punishment authorized under the UCMJ, the significance of a bad conduct or dishonorable discharge, and of the possible effects of an under other than honorable conditions (UOTHC) discharge.  Subsequent to receiving legal counsel, the applicant voluntarily requested discharge for the good of the service under the provisions of chapter 10, Army Regulation 635-200.  

5.  In her discharge request, the applicant acknowledged her understanding that by submitting a request for discharge, she was admitting guilt to the charge against her, or of a lesser included offense therein contained which also authorized the imposition of a bad conduct or dishonorable discharge.  She also indicated that she understood that if her request for discharge were approved, she could receive an under other than honorable conditions (UOTHC) discharge, which could result in her being deprived of many or all Army benefits, and render her ineligible for many or all benefits administered by the Department of Veterans Affairs (VA).  She further acknowledged her understanding that she could expect to encounter substantial prejudice in civilian life because of an UOTHC discharge.  She finally elected not to submit statements in her own behalf.   

6.  On 28 February 2007, the separation authority approved the applicant's discharge under the provisions of chapter 10, Army Regulation 635-200 for the good of the service, and directed the applicant receive an UOTHC discharge, and that she be reduced to the lowest enlisted grade.  On 21 March 2007, the applicant was discharged accordingly.  The separation document (DD Form 214) issued to the applicant upon her discharge confirms she completed a total of 
7 months and 5 days of creditable active military service, and that she accrued 34 days of time lost due to AWOL.  It also confirms that based on the authority and reason for her separation, she was assigned a Separation Program Designator (SPD) code of KFS and an RE code of RE-4.    

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 trial by court-martial.  An UOTHC discharge normally is appropriate for a Soldier who is discharged in lieu of trial by court-martial.  
8.  Army Regulation 601-210 covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the United States Army Reserve (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-4 applies to persons who have a nonwaivable disqualification.  

9.  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 KFS is the appropriate code to assign to Soldiers separated under the provisions of Chapter 10, Army Regulation 635-200, in lieu of trial by court-martial.  The SPD/RE Code Cross Reference Table stipulates that an RE-4 code will be assigned to members separated under these provisions with an SPD code of KFS.   

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that she should have been authorized emergency leave due to the loco parentis status of her grandmother and as a result should have her RE code changed to an RE-3 was carefully considered.  However, there is insufficient evidence to support her claim.  There is no evidence of record or independent evidence submitted by the applicant that confirms the illness of her grandmother, or that shows she ever requested and was denied emergency leave.  

2.  By regulation, RE-4 is the proper code to assign to members who are assigned an SPD code of KFS and who are discharged for the good of the service in lieu of trial by court-martial.  

3.  The evidence of record also confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. The record shows that after consulting with defense counsel, the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  In her request for discharge, she admitted guilt to the charge against her, or of a lesser included offense, that also authorized the imposition of a bad conduct discharge.  All requirements of law and regulation were met and that the rights of the applicant were fully protected throughout the separation process.  It further shows that based on the authority and reason for her separation, she was appropriately assigned an SPD code of KFS and an RE code of 4.  


4.  Absent evidence to the contrary, the RE-4 code assigned was proper and equitable based on the authority and reason for her discharge, and remains valid. As a result, there is an insufficient evidentiary basis to support a change to the RE code at this time.  

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

___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)                                         AR20080005820



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080005820



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1