IN THE CASE OF:
BOARD DATE: 29 July 2008
DOCKET NUMBER: AR20080010907
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 that her discharge be upgraded to general, under honorable conditions and that her reenlistment eligibility (RE) code be changed.
2. The applicant states, in effect, that her RE code should be changed based on the favorable upgrading of her characterization of service by the ADRB.
3. The applicant provides a copy of the ADRB decisional document.
CONSIDERATION OF EVIDENCE:
1. The applicant entered active duty on 31 May 2000, completed training and was assigned to Headquarters and Headquarters Troop, 4th Squadron, 3rd Armored Regiment, Fort Carson, Colorado.
2. Her record shows that she was absent without leave (AWOL) from 5 November 2001 through 17 November 2001 and 30 November 2001 through 6 January 2002.
3. On 7 January 2002, her unit commander initiated separation action under the provisions of Army Regulation 635-200, Chapter 14 for misconduct.
4. After consulting with counsel and being advised of her rights and options, the applicant submitted a formal request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10. She acknowledged she had been advised of and understood her rights under the Uniform Code of Military Justice, that she could receive an UOTHC discharge which would deprive her of many or all of her benefits as a veteran, that she could expect to experience substantial prejudice in civilian life if she received an UOTHC discharge, and that there was no automatic upgrade or review of a less than honorable discharge.
5. The discharge authority accepted her request and directed that she be discharged under other than honorable conditions.
6. The applicant was discharged on 19 January 2001. She had completed
1 year, 6 months, and 8 days of creditable service with a total of 51 days of lost time. Her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she received a discharge under other than honorable conditions under the provisions of Army Regulation 635-200, Chapter 10, with a Separation Program Designator (SPD) of KFS and an RE code of 4.
7. The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of her record. On 31 March 2008, the ADRB granted her a recharacterization of her service to general, under honorable conditions but declined to change the reason for separation. Therefore, this issue will not be addressed further.
8. 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. A discharge under other than honorable conditions is normally considered appropriate. However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.
9. The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the UCMJ. A punitive discharge is authorized for offenses under Article 86, for periods of AWOL in excess of 30 days.
10. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribes the specific authorities (regulatory or other directives), reasons for separating Soldiers from active duty, and the SPD codes to be entered on DD Form 214. It states, in pertinent part, that the SPD code of KFS is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, chapter 10. The SPD/RE Code Cross Reference Table included in the regulation establishes RE-4 as the proper code to assign members separated with this SPD code.
DISCUSSION AND CONCLUSIONS:
1. The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations. There is no indication that the request was made under coercion or duress.
2. A Soldier's RE code is based on the reason for separation not the characterization of service. The ADRB upgraded the characterization of the applicants service but denied her a change in the reason for separation. The applicant has provided no evidence to support the reversal that decision.
3. Without a change of the reason for separation and the associated SPD code there is no justification to change the RE code.
4. 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.
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