IN THE CASE OF:	  

		BOARD DATE:		  24  November 2009

		DOCKET NUMBER:  AR20090011013 


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 that her Reenlistment Code (RE) 4 be changed to    RE 1 and reason for discharge be changed to for the convenience of the government. 

2.  The applicant states that it was an injustice for her to have suffered the adverse consequences of a bad discharge.  Men were allowed to marry but not women.  Enlisted women were having babies out of wedlock during the time she was enlisted.  None of them were discharged.  She contends that under current standards, she would not have been discharged.  The applicant contends that she earned awards and decorations and has been a good citizen since her discharge.  

3.  The applicant provides, in support of her application, a copy of her DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge). 

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.  A DA Form 3286 (Statements for Enlistment), dated 14 October 1970, shows that the applicant indicated that there were no persons dependent upon her for support and that she had never been married.

3.  On 2 November 1970, the applicant enlisted in the Army for 3 years.  She completed her initial training and was awarded military occupational specialty (MOS) 72B (Communications Center Specialist).  On 7 April 1971, she was assigned for duty with the Women's Army Corps (WAC) Company, Oakland Army Base, California.

4.  On 12 October 1971, the applicant was promoted to private first class, pay grade E-3.

5.  On 10 December 1971, the applicant was reduced to private, pay grade E-2, due to misconduct.  The available records do not provide any further information regarding her reduction.

6.  On 17 January 1972, the applicant's commander recommended that the applicant be immediately separated from the military service because of an erroneous enlistment.  The commander stated that at the time of the applicant's enlistment, she was not eligible for enlistment because she was married and did not request a waiver of the disqualification.  The commander also said that the applicant made a statement indicating she wanted to remain in the Army.  The applicant's statement did not indicate the fact that she had brought this matter to the attention of the military, rather than it being discovered in the course of an investigation.  The applicant's performance of duty had not indicated a sincere desire to remain in the military service.  Since her arrival at Oakland Army Base, the applicant had received two nonjudicial punishments (NJP) and had been reduced in rank due to breaking restriction.  The applicant had been counseled on numerous occasions regarding responsibility, duty performance, cooperation within the unit, and attitude towards the military.  The counseling produced no apparent change in the applicant's performance.

7.  On 7 February 1972, the appropriate authority approved the recommendation.  The applicant was discharged on 15 February 1972, under the provisions of Army Regulation 635-200, paragraph 5-31, due to erroneous enlistment.  She was given a Separation Program Number (SPN) 319 and an RE Code of 4.  Her character of service was honorable.  

8.  Army Regulation 635-200 (Enlisted Personnel Separations), as in effect at the time, provided authorization for separation for the convenience of the government.  Paragraph 5-31, in pertinent part, provided for a discharge based upon erroneous enlistment.  When it was discovered that an individual's enlistment was erroneous because of failure to meet the qualifications for enlistment, the unit commander was required to initiate action to obtain authority to retain the member or to discharge or release the member from active duty, as appropriate, on the basis of erroneous enlistment.  In cases where separation was directed, paragraph 5-31 was to be cited as the authority.  The appropriate SPN was 319.

9.  Army Regulation 601-210 (Regular Army Enlistment Program), as in effect at the time, prescribed eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army.  Table 2-1 (Basic Eligibility Criteria for persons with no prior service) stated that women applying for enlistment must be unmarried.  Table 3-1 (Waiver Approval Authorities - Basic Eligibility Criteria) provided that women applicants had to sign a statement indicating their understanding that the Army made no promises regarding assignment of women Soldiers with or close to their spouses.  

10.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities and reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  The SPD code of JFC is the appropriate code for an individual being separated due to erroneous enlistment.   As of 2 October 1989, the SPD/RE Code Cross Reference Table established the appropriate RE Code for JFC as either a 3 or 4.   If the individual was barred to reenlistment by the Department of the Army or could not meet the citizenship requirements for reenlistment, a RE 4 was entered on the DD Form 214.  Otherwise, an RE 3 was entered.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her DD Form 214 should be corrected to change her RE Code 4 to RE Code 1 and change the reason for her separation to convenience of the government.   

2.  The evidence of record shows that the applicant lied about her marital status at the time of her enlistment.  She subsequently brought her marital status to the attention of the military resulting in her being discharged for erroneous entry.  The applicant's DD Form 214 states that she was discharged due to an erroneous enlistment.  Her characterization of service was honorable.  An RE Code 4 was entered on her DD Form 214.  There is no available evidence showing that these entries are in error or that her discharge was unjust.
3.  The applicant's contention that she earned awards and decorations is not supported by the evidence of record.  The only medal she received was the National Defense Service Medal.  Her claim of "good citizenship since her discharge" is noted, but unsupported by any other evidence.  In any case, good post-service conduct alone is normally an insufficient basis on which to correct records.

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 the aforementioned requirement.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20090011013





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ABCMR Record of Proceedings (cont)                                         AR20090011013



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