BOARD DATE:	  13 August 2009

		DOCKET NUMBER:  AR20090006553 


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 under other than honorable conditions (UOTHC) discharge to a general under honorable conditions discharge (GD) and reconsideration of her request for an upgrade of her reentry eligibility (RE) code.

2.  The applicant states, in effect, she was unjustly treated as compared to another Soldier involved in the incident when she was placed on extra duty without nonjudicial punishment action and the other Soldier was allowed to continue to participate in unit activities.  In a separate letter, she states she partook in something that at the time sounded good and did not think of the consequences.

3.  The applicant provides a self-authored letter in support of her application.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080011853 on 30 September 2008.

2.  During its original review of the applicant's request for an upgrade of her RE code, the Board determined there was no error or injustice related to the applicant's discharge processing and/or RE code assignment.  The applicant provides the new argument that she was unjustly treated as compared to another Soldier involved in the incident in her reconsideration request.

3.  The applicant's record shows she enlisted in the Regular Army and entered active duty on 6 September 2000.  She was trained in and awarded military occupational specialty 75H (Personnel Specialist); specialist/E-4 is the highest rank she held while serving on active duty.

4.  The applicant's record documents no acts of valor.  It does show she earned the Army Achievement Medal, Military Outstanding Volunteer Medal, Army Good Conduct Medal, National Defense Service Medal, Army Service Ribbon, Overseas Service Ribbon, and Expert Marksmanship Qualification Badge with Rifle and Hand Grenade Bars.

5.  The applicant's record is void of a separation packet containing the specific facts and circumstances surrounding her discharge processing.  The record does contain a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty) that identifies the authority and reason for discharge.

6.  The applicant's DD Form 214 confirms that on 28 February 2003 she was discharged in the rank of private/E-1 under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations), in lieu of trial by court-martial and that she received a UOTHC discharge.  It further confirms that at the time of her discharge she had completed a total of 2 years, 5 months, and 25 days of active service.  Items 26 (Separation Code) and 27 (Reentry Code) show 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-4 code.

7.  On 20 December 2006, the Army Discharge Review Board, after carefully reviewing the applicant's record of service, determined the applicant's discharge was both proper and equitable and voted to deny the applicant's request for an upgrade of her discharge.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 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.  The regulation indicates that a UOTHC discharge normally is appropriate for a Soldier who is discharged in lieu of trial by court-martial under the provisions of chapter 10; however, the separation authority may direct that a GD or honorable discharge (HD) be issued if merited by the Soldier's overall record of service.
9.  Paragraph 3-7a of Army Regulation 635-200 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.

10.  Paragraph 3-7b of Army Regulation 635-200 provides that a GD 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.

11.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the United States Army Reserve.  Chapter 3 of that regulation prescribes the basic eligibility for prior-service applicants for enlistment.  That chapter includes a list of Armed Forces RE codes including Regular Army RE codes.  RE-3 applies to persons who have a waivable disqualification.  RE-4 applies to persons who have a nonwaivable disqualification.

12.  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 Department of the Army SPD/RE Code Cross Reference Table states that RE-4 is the proper code to assign members separated under the provisions of chapter 10, Army Regulation 635-200, who were assigned an SPD code of KFS.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention, in effect, that her discharge was unjust because she was treated differently than another Soldier also involved in the incident was carefully considered.  However, there is insufficient evidence to support this claim and even if it were true, it would not be sufficiently mitigating to support granting the requested relief.

2.  In the statement she provides with her application, the applicant admits that she partook in something that at the time sounded good and did not think of the consequences, which in effect is an admission that she committed an infraction that led to her discharge, and while the available evidence does not include a separation packet that contains the specific facts and circumstances surrounding the applicant’s final discharge processing, it does include a properly-constituted DD Form 214 that identifies the reason and characterization of the applicant’s final discharge.  As a result, Government regularity in the discharge process is presumed.

3.  The applicant’s DD Form 214 indicates she was discharged under the provisions of chapter 10, Army Regulation 635-200, in lieu of trial by court-martial.  In connection with such a discharge, she was charged with the commission of an offense punishable with a punitive discharge under the Uniform Code of Military Justice (UCMJ).  Procedurally, she was required to consult with defense counsel and to voluntarily request separation from the Army in lieu of trial by court-martial.  In doing so, she would have admitted guilt to the stipulated offense(s) under the UCMJ that authorized the imposition of a punitive discharge. 
In the absence of information to the contrary, it is concluded that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

4.  The record indicates the applicant voluntarily requested discharge to avoid a court-martial that could have resulted in her receiving a punitive discharge and the UOTHC discharge she received was normal and appropriate under the regulatory guidance.  As a result, there is an insufficient evidentiary basis to support an upgrade of her discharge.

5.  The evidence of record further shows the applicant was properly assigned an SPD code of KFS and an RE-4 code based on the authority and reason for her discharge.  Absent any evidence of error or injustice in the discharge process, which includes the SPD and RE code assignments, the assigned RE-4 code was and remains valid.  As a result, there is an insufficient evidentiary basis to support a change to the RE code.

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 or that would support amendment of the original Board decision in this case.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x___  ___x____  ___x____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  In regard to the applicant's request to upgrade her discharge, 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.

2.  In regard to the applicant's request for reconsideration of her request to upgrade her RE code, 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 or to amend the decision of the ABCMR set forth in Docket Number AR20080011853, dated 30 September 2008.



      ___________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)                                         AR20090006553



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ABCMR Record of Proceedings (cont)                                         AR20090006553



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