IN THE CASE OF:	  

		BOARD DATE:	       22 SEPTEMBER 2009

		DOCKET NUMBER:  AR20090008179 


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, that her reentry eligibility (RE) code be changed from RE-4 to RE-3.

2.  The applicant states, in effect, that on 31 July 2007, while attending basic training at Fort Jackson, SC, she made friends with a group of female Soldiers who were just as motivated to get through the training as she was.  However, after a month accusations of homosexual conduct within this group began to spread and Drill Sergeants began to call us out asking "where's your special battle buddies."  She states she requested to speak to the commander to remove herself from the situation by changing her military occupational specialty (MOS); however, she was informed this was not possible.  After months of harassment, she could not take it anymore and began seeing a therapist, who advised her to speak to her chain of command.  She claims she began having panic attacks and could no longer focus in class which caused her to tap out of her classes.

3.  The applicant further states that after requesting to speak to the commander and never given the chance, she and her battle buddies decided to take an "out of ranks" knowing that was the only way to get time in front of the commander.  They made the mistake of staying out until the next day before turning themselves in.  While she was being counseled she was informed that she was already DFR'd [dropped from the rolls of the Army].  She further states that after 

signing the counseling statement, her counseling statement was replaced with an unsigned statement, which resulted in her leaving again and returning home to Boise, ID.  Less than 30 days later she turned herself in at Fort Sill, OK, and began out-processing.  

4.  The applicant provides the following documents in support of her application: a self-authored statement, dated 27 April 2009; a DD Form 214 (Certificate of Release or Discharge from Active Duty); a State of Idaho, Military Division, Boise, ID, Orders 414-013, dated 4 April 2008; a DD Form 553 (Deserter/
Absentee Wanted by the Armed Forces), dated 13 March 2008; six DA Forms 4187 (Personnel Action), dated between 30 April 2007 and 13 March 2008; an incomplete DA Form 2627 (Record of Proceedings under Article 15, UCMJ [Uniform Code of Military Justice]), dated 10 March 2008; a DD Form 458 (Charge Sheet), dated 13 March 2008; a DD Form 616 (Report of Return of Absentee), dated 27 October 2008; and letters of recommendation in support of the applicant from two noncommissioned officers, dated 25 March 2009 and     28 April 2009, respectively.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows she initially enlisted in the Ohio Army National Guard (OHARNG) on 15 February 2007.  

2.  On 31 July 2007, the applicant was ordered to active duty to attend initial active duty training (IADT) at Fort Sam Houston, TX.  

3.  On 10 March 2008, the applicant's commander initiated non-judicial punishment (NJP) action against the applicant under the provisions of Article 15 of the UCMJ based on the applicant being absent without leave (AWOL) from
8 March through 10 March 2008.  No information is available on any further processing of this action.  

4.  On 13 March 2008, a DD Form 458 was prepared preferring a court-martial charge against the applicant for violating Article 86 of the UCMJ for being AWOL from on or about 8 March 2008 until on or about 10 March 2008, and from on or about 11 March 2008 through on or about 13 March 2008.

5.  The applicant’s record is void of a separation packet containing the specific facts and circumstances surrounding her separation processing.  However, the record does include a DD Form 214 that confirms she was discharged under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – 

Active Duty Enlisted Administrative Separations), in lieu of trial by court-martial, and she received a general, under honorable conditions discharge (GD) on
12 September 2008.  Item 26 (Separation Code) confirms the applicant was assigned a separation program designator (SPD) code of KFS and item 27 (Reentry Code) shows she was assigned an RE-4 code.  This document also confirms she completed a total of 1 year and 1 day of creditable active military service and that she accrued 9 days of time lost due to AWOL.  

6.  The applicant provides twp third-party statements from her Noncommissioned Officer in Charge and Operations Sergeant at the IDARNG, dated 25 March and 28 April 2009, respectively.  Both noncommissioned officers indicate the applicant is a very motivated Soldier who would be an outstanding asset to any organization, and that her desire to serve the people of her community and the State is without equal.  They both indicate they would be honored to recommend her for any assignment or position she is considered for.

7.  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.

8.  Pertinent Army regulations provide 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 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the U.S. Army Reserve (USAR).  Chapter 3 of that regulation prescribes basic eligibility for prior-service applicants for enlistment.  That chapter includes a list of armed forces RE codes, including RA RE codes.  RE-4 applies to persons who are permanently disqualified for continued Army service.

9.  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 of 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 SPD/RE Code Cross Reference Table establishes RE-4 as the proper code to assign members separated with this SPD code.
DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that her RE-4 code be changed to RE-3 so that she may reenter the military and the supporting third-party statement she provided were carefully considered.  However, these factors are not sufficiently mitigating to support granting the requested relief.

2.  The available evidence does not include a separation packet containing the specific facts and circumstances surrounding the applicant’s final discharge processing.  However, it does include a properly constituted DD Form 214 that confirms she was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service, 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 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.  Absent evidence to the contrary, it is concluded that all requirements of law and regulation were met and that the rights of the applicant were fully protected throughout the separation process.  

3.  By regulation, the RE-4 code assigned to the applicant was the proper code to assign members separating under the provisions of chapter 10, Army Regulation 635-200, in lieu of trial by court-martial.  As a result, the RE-4 code was and remains valid.

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.



      __________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)                                         AR20090008179



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090008179



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1