IN THE CASE OF:	  

		BOARD DATE:	        3 March 2009

		DOCKET NUMBER:  AR20080018665 


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 Reentry (RE) Code for future enlistment.

2.  The applicant states that she believes she is a great candidate for reentry into military service now that she is a more responsible and mature person.  

3.  The applicant provided a copy of her DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 7 October 2005; a copy of Orders 266-7, issued by Headquarters, U.S. Army Personnel Control Facility, U.S. Army Armor Center and Fort Knox, Fort Knox, KY, on 23 September 2005; a self-authored letter, dated 8 June 2008; and two dated and one undated character reference letters 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 U.S. Army Reserve (USAR) for a period of 8 years on 23 August 2004.  She was subsequently ordered to active duty for training (ADT) on 18 November 2004 and reported to Fort Jackson, SC, for basic combat training.

3.  On 12 January 2005, the applicant departed her basic training unit in an absent without leave (AWOL) status and was subsequently dropped from the rolls of the Army on 12 February 2005.  She remained in this status until she was apprehended by civil authorities in Rochester, NY, and was returned to military control at Fort Knox, KY, on 3 September 2005.

4.  On 12 September 2005, court-martial charges were preferred against the applicant for one specification of being AWOL during the period from on or about 12 January 2005 through on or about 3 September 2005.  

5.  On 12 September 2005, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), of the possible effects of an under other than honorable conditions discharge if the request was approved, 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).

6.  In her request for discharge, the applicant 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 dishonorable discharge.  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 Department of Veterans Affairs, and that she could be deprived of her rights and benefits as a veteran under both Federal and State law.  

7.  On 19 September 2005, the applicant’s immediate commander recommended approval of the applicant’s request for discharge and remarked that her conduct had rendered her triable by a court-martial under circumstances which could 
have led to a bad conduct or a dishonorable discharge.  Based on her previous record, punishment was expected to have had a minimal rehabilitative efforts and a discharge was in the best interests of all concerned.  He further recommended an under other than honorable conditions character of service.

8.  On 21 September 2005, the separation authority approved the applicant's request for discharge and directed that she receive an under other than honorable conditions discharge and be reduced to the lowest enlisted grade.  Accordingly, the applicant was discharged on 7 October 2005.  The DD Form 214 she was issued shows she was discharged under other than honorable conditions in accordance with chapter 10 of Army Regulation 635-200, in lieu of trial by court-martial.  This form also shows that she completed 2 months and   29 days of creditable active military service and had 234 days of lost time due to AWOL.  Item 27 (Reentry Code) of her DD Form 214 shows the entry "4."  She was given a separation code of "KFS" (voluntary discharge in lieu of trial by court-martial).

9.  The applicant submitted a self-authored statement and three character reference letters in support of her request as follows:

	a.  in her self-authored statement, dated 8 June 2008, the applicant states that she excelled in basic training and that when she went home on leave, she faced a stressful situation and a non-supportive family at home and decided to go AWOL.  However, she now knows that what she did was wrong and has regretted her actions.  She would like to reenter military service and hopes the Board would upgrade her RE code;

	b.  in a character reference letter, dated 4 January 2008, an individual comments on the applicant’s admirable qualities of strong leadership, honesty, friendliness, energy, and her positive, can do attitude;

   c.  in a character reference letter, dated 7 January 2008, the applicant’s pastor comments on her maturity and sense of responsibility and highly recommends her to reenter the Army National Guard; and

	d.  in an undated character reference letter, the applicant’s supervisor comments on her strong learning ability, determination, and hard work.

10.  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.

11.  Army Regulation 635-200 further 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 USAR.  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.

12.  The Separation Program Designator (SPD)/Reentry Code Cross Reference Table states that when the SPD code is "KFS" then RE Code 4 will be given.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s records show 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 his overall record of service.

2.  The evidence of record further confirms that the applicant’s RE code was assigned based on the fact that she was discharged under the provisions of chapter 10 of Army Regulation 635-200, in lieu of trial by court-martial, due to AWOL.  The RE code associated with this type of discharge is RE-4.  Therefore, the applicant received the appropriate RE code associated with her discharge.

3.  The 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 show, or it must otherwise satisfactorily appear, that the RE code is in error or unjust.  The applicant did not submit evidence that would satisfy that requirement.  Therefore, the applicant 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)                                         AR20080018665



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080018665



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1