IN THE CASE OF:	

		BOARD DATE:	6 August 2009  

		DOCKET NUMBER:  AR20090001801 


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, an upgrade of her general, under honorable conditions discharge (GD) to an honorable discharge (HD); an upgrade of her reentry (RE) code; and retirement in the grade she would have held.  

2.  The applicant states, in effect, that there is no outright injustice related to her discharge; however, she would like it upgraded to an HD and would like to be retired in the rank she would have been had she not been discharged, and to have the opportunity to join a Reserve Component of the Armed Forces.  

3.  The applicant states her case should be reopened and investigated because she believes she never should have been demoted.  She claims her punishment was too harsh and was based on no supporting documents.  She states she just wants her military life back and claims the actions taken against her were the result of racism in the units in which she served, which caused hatred based on what they assumed she was.  

4.  The applicant provides no documentation 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 record shows she enlisted in the Regular Army (RA) and entered active duty on 9 February 1988.  She was trained in and awarded military occupational specialty (MOS) 81L (Photo Lithographer) and sergeant (SGT) is the highest grade she held while serving on active duty.  

3.  The applicant's record shows she earned the following awards during her active duty tenure:  Army Lapel Button, Meritorious Unit Commendation, Army Good Conduct Medal (3rd Award), National Defense Service Medal, Noncommissioned Officer Professional Development Ribbon, Army Service Ribbon, Overseas Service Ribbon, and Sharpshooter Marksmanship Qualification Badge with Rifle and Grenade Bar.  Her record documents no acts of valor.  

4.  The applicant's disciplinary history includes her acceptance of non-judicial (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 19 March 1997, for signing a false official statement, with the intent to defraud the Government, in which she claimed cost of living allowances based on a daughter who was not living with her.  Her punishment for this offense was a reduction to specialist (SPC) and forfeiture of $697.00 per month for two months (suspended).  

5.  On 17 February 1998, a DD Form 458 (Charge Sheet) was prepared preferring court-martial charges against the applicant for violating Article 86 and 92 of the UCMJ as follows:  Article 86, by leaving her appointed place of duty without proper authority on or about 7 November 1997 and by failing to go to her appointed place of duty at the prescribed time on or about 11, 13, and 
17 November 1997; and Article 92, by failing to obey a lawful general regulation, by wrongfully leaving her child, under 10 years of age, unattended in family quarters. 

6.  On 20 February 1998, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the effects of an under than honorable conditions discharge (UOTHC), and of the rights available to her.  Subsequent to receiving this legal counsel the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.

7.  In her request for discharge the applicant acknowledged that she had been advised of the implications that were attached to her discharge request.  She further confirmed that by submitting a request for discharge, she was acknowledging that she understood the elements of the offenses charged and that she was guilty of at least one of the charges against her or of a lesser included offense which also authorized the imposition of a bad conduct or dishonorable discharge.   She also acknowledged her understanding that if her discharge request were 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 (VA), and that she could be deprived of her rights and benefits as a veteran under both Federal and State law.  She further indicated that she understood that she could encounter substantial prejudice in civilian life by reason of an UOTHC discharge.

8.  On 2 April 1998, the separation authority approved the applicant’s request for discharge and directed that she receive an UOTHC discharge.  On 8 May 1998, the applicant was discharged, in the rank of private/E-1 (PV1), accordingly.  

9.  The DD Form 214 issued to the applicant upon her discharge on 8 May 1998, shows she was separated under the provisions of Chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), for the good of the service – in lieu of court-martial, and that she received an UOTHC discharge.  It also shows that at the time she had completed 10 years and 3 months of creditable active service.  It further shows that based on the authority and reason for her discharge, the applicant was assigned a separation program designator (SPD) code of KFS and an RE code of RE-4.  

10.  On 13 December 2006, the Army Discharge Review Board reviewed the applicant's application for an upgrade of the characterization and change to the reason for her discharge.  The ADRB found that based on her overall record of service, the characterization of her discharge was inequitable and it voted to upgrade it to a general, under honorable conditions discharge (GD) and to restore her grade to SPC; however, the ADRB determined the reason for her discharge was both proper and equitable and it voted not to change it.  

11.  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 is normally considered appropriate for members separated under these provisions.  

12.  Paragraph 3-7a of the same regulation provides that an HD 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.

13.  Army Regulation 635-200, chapter 12 contains the policies on retirement.  Paragraph 12-4 contains guidance on the twenty-year retirement law.  It states, in pertinent part, that a Soldier who has completed 20, but less than 30, years of Active Federal Service (AFS) in the United States Armed Forces may be retired at his or her request upon completion of 20 years of active military service.  

14.  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 RA and the US Army Reserve.  Table 3-1 included a list of the Regular Army RE codes.  An 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.  RE-4 applies to Soldiers separated from the last period of service with a nonwaivable disqualification.

15.  Army Regulation 635-5-1 (Separation Program Designator Codes (SPD)) states that 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 the Department of Defense and the military services to assist in the collection and analysis of separation data.  The SPD code of "KFS" is the correct code for Soldiers separating under chapter 10, Army Regulation 635-200.  

16.  The Department of the Army SPD/RE Code Cross Reference Table, provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers.  This cross reference table shows the SPD code and a corresponding RE code.  The SPD code of "KFS" shows a corresponding RE code of "4."

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that her GD should be upgraded to an HD because her discharge was the result of racism in her unit was carefully considered.  However, while the Board takes allegations of racism very seriously, there is no evidence of record or independent evidence provided by the applicant that supports her assertion of racism in her unit.  As a result, there is insufficient evidence to support this claim.  

2.  The evidence of record confirms the applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge. After consulting with defense counsel, she voluntarily requested discharge 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. 

3.  The evidence of record also confirms the applicant was processed for separation in lieu of trial by court-martial at her own request, in order to avoid a trial by court-martial that could have resulted in her receiving a punitive discharge.  The separation authority approved her request and appropriately directed that she receive an UOTHC discharge, which was consistent with regulatory policy in effect at the time.  The subsequent upgrade of the character of the applicant's discharge to a GD and the restoration of her grade to SPC by the ADRB was an equity determination based on her overall record of service.  However, the ADRB determined the authority and reason for the applicant's discharge were proper and equitable.  Although the applicant's overall record of service supported this action, her disciplinary history clearly diminished the overall qualify of her service below that meriting a fully honorable discharge.  

4.  Further, the SPD code and RE code were properly assigned the applicant in accordance with the governing regulations based on the authority and reason for her discharge.  Therefore, given there has been no change to the reason for her discharge, these codes were and remain valid.  As a result, there is an insufficient evidentiary basis to support a change to her RE-4  code.  

5.  The applicant's request that she be retired based on completion of sufficient service for length of service retirement (20 years) was also carefully considered.  However, the evidence of record in this case confirms the applicant only completed a total of 10 years and 3 months of active military service as of the date of her discharge.  Therefore, absent any evidence that she completed the necessary 20 years of active service necessary to support retirement, there is also an insufficient evidentiary basis to support this portion of the requested relief. 

6.  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)                                         AR20090001801



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ABCMR Record of Proceedings (cont)                                         AR20090001801



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