IN THE CASE OF:	  

		BOARD DATE:	        8 January 2009

		DOCKET NUMBER:  AR20080016146 


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 an upgrade of her discharge, correction of her reentry (RE) code from RE-3 to RE-1, and correction of her rank/grade from PVT [private]/E-1 to CPL [corporal]/E-4.

2.  The applicant states that the circumstances surrounding the situation of her discharge were grossly misconstrued and highly prejudicially unfair.  She adds that she was not afforded the correct advice or instruction thereafter and that she does not believe the situation warranted the penalty she received at her discharge.  She concludes that there were internal racially motivated situations that were not ever apparent or brought to light.  

3.  The applicant did not provide any additional documentary evidence in support of her application.

CONSIDERATION OF EVIDENCE:

1.  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.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a 

substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's records show she enlisted in the Regular Army for a period of 3 years on 4 November 1986.  She completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 95B (Military Police).  She also held MOS 95C (Corrections Specialist).  The highest rank/grade she attained during her military service was CPL.

3.  The applicant’s records also show she was awarded the Army Service Ribbon and the Army Good Conduct Medal (1st award).  There is no record of achievements or acts of special recognition during her military service.

4.  On an unknown date, the applicant refused nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for violation of a lawful general regulation and demanded trial by court-martial.  A copy of the DA Form 2627 (Record of Proceedings under Article 15 of the UCMJ) is not available for review with this case.

5.  On 26 January 1990, court-martial charges were preferred against the applicant for one specification of disobeying a U.S. Disciplinary Barracks regulation by fraternizing with and writing to an inmate and stealing telephone services.  

6.  On 2 February 1990, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to her.  Following consultation with legal counsel, she requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).

7.  In her request for discharge, the applicant indicated that she was making this request of her own free will and had not been subjected to any coercion whatsoever by any person.  She also indicated that she understood that by requesting discharge, she was admitting guilt to the charges against her, or of a lesser included offense, that also authorized the imposition of a bad conduct 

discharge or a discharge under other honorable conditions.  She further acknowledged she understood that if the discharge request was approved, she could be deprived of many or all Army benefits, that she could be ineligible for many or all benefits administered by the Veterans Administration (VA) [now known as the Department of Veterans Affairs], and that she could be deprived of his rights and benefits as a veteran under both Federal and State law. 

8.  On 5 February 1990, the applicant's immediate commander strongly recommended disapproval of the applicant’s request.  He further remarked that there was an urgent need to deter this type of behavior in the U.S. Disciplinary Barracks Military Police Battalion and that administrative disposition of the charges would not have fulfilled this need. 

9.  On 5 February 1990, the applicant’s intermediate commander also recommended disapproval of the applicant's voluntary discharge and remarked that the applicant was counseled by her chain of command and by him after she refused nonjudicial punishment and demanded trial by a court-martial.  He adds that he explained to her the seriousness of her decision to which she replied that her legal counsel had explained the same things to her and this was the course of action she had chosen.  The intermediate commander concluded that the applicant’s offenses were serious enough to warrant disciplinary action if she was found guilty.  Allowing her to take the easy way out via a chapter 10 was in effect allowing her to thumb her nose at the system.  She demanded a court-martial and should get what she asked for.

10.  On 6 February 1990, the applicant’s senior commander recommended approval of the applicant’s discharge under other than honorable conditions.  

11.  On 6 February 1990, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200 and directed she be furnished an under other than honorable conditions discharge and be reduced to the lowest enlisted grade.  On 12 February 1990, the applicant was accordingly discharged.  The DD Form 214 she was issued at the time of her discharge shows she was discharged for the good of the service with a character of service of under other than honorable conditions.  This form further confirms she completed 3 years, 5 month, and 9 days of creditable active military service.  Items 4a (Grade, Rate or Rank) and 4b (Pay Grade) show the entries PVT/E-1 and Item 27 (Reentry Code) shows the entry RE-3.

12.  On 13 July 1992, the Army Discharge Review Board (ADRB) denied the applicant’s petition for an upgrade of her discharge.  

13.  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, 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.

14.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

15.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

16.  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 RA 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. 

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

17.  Army Regulation 600-200 (Enlisted Personnel Management System), chapter 6 of the version in effect at the time, prescribed policies and procedures governing promotion and reduction of Army enlisted personnel.  In pertinent part, it stated that when the separation authority determined that a Soldier was to be discharged from the Service under other than honorable conditions, the Soldier would be reduced to the lowest enlisted grade.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her discharge should be upgraded, her RE-3 code should be changed to RE-1, and her E-4 grade should be restored.

2.  The applicant’s contention that she was not afforded the correct advice or instruction was considered; however, it was found without merit.  As indicated by her intermediate commander’s comments, he explained to her the seriousness of her decision to which she replied that her legal counsel had explained the same things to her and this was the course of action she had chosen.

3.  Contrary to the applicant’s contention that her discharge may have been a result of internal racially motivated situations, there is no evidence in the available records and the applicant did not provide any substantiating evidence that shows any racially motivated situations or indication that she addressed such racially motivated situations with her chain of command or other support channels.  Even if she encountered racial issues, she had many legitimate avenues through which she could have received assistance or relief, had she chosen to use them.

4.  The applicant’s record shows she was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  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, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects her overall record of service.  Based on her record of indiscipline, her service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders her service unsatisfactory.  Therefore, the applicant is not entitled to either a general or an honorable discharge

5.  The evidence of record further confirms that the applicant’s RE code was assigned based on the fact that he was separated under the provisions of chapter 10 of Army Regulation 635-200, in lieu of trial by court-martial.  The RE code associated with this type of discharge is RE-3.  Therefore, the applicant received the appropriate RE code associated with her discharge.  Furthermore, along with an under other than honorable conditions character of service and as required by Army Regulation 600-200, the separation authority ordered the applicant reduced to the lowest enlisted grade, which is properly shown on her DD Form 214.

6.  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 has failed to submit evidence that would satisfy this requirement.  Therefore, she is not entitled to relief.

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.


															XXX
      ______________________
               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)                                         AR20080016146



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ABCMR Record of Proceedings (cont)                                         AR20080016146



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