IN THE CASE OF:	

		BOARD DATE:	  26 January 2010


		DOCKET NUMBER:  AR20090014338 


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 correction of her Reenlistment Eligibility (RE) code from a 4 to a more favorable code.

2.  The applicant states that she was discharged because her mother forced her to have an abortion in 1969.  She was only 17 years old at the time and had no say in the matter and that she did what the recruiter told her to do.  She adds that the attitudes about abortions have changed since 1969. 

3.  The applicant provides an undated self-authored statement and a copy of her DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 26 November 1971, in support of her request.

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 was born on 15 December 1952 and enlisted in the Regular Army at 18 years of age for a period of 3 years on 2 February 1971.  She completed basic and advanced individual training and was awarded military occupational specialty 71B (Clerk/Typist).  The highest rank/grade she attained during her military service was private/E-2.

3.  On 17 August 1971, a medical doctor submitted a statement in which he stated that he did a pregnancy slide test on the applicant on 8 September 1970 and that she tested positive.  She was next seen by him on 28 January 1971 for treatment of tonsillitis and at the time stated that she had had an abortion in New York City. 

4.  On 24 August 1971, the applicant submitted a sworn statement in which she stated that she did admit to her recruiter that she had been pregnant and had an abortion; however, the recruiter told her not to note this information on her enlistment papers, that everything would be fine, and that there was no reason to put it down.

5.  On 29 August 1971, the applicant's immediate commander stated that in August 1971 the applicant disclosed that prior to her entry into the armed forces she had had an illegitimate pregnancy which ended in an abortion, thus constituting a fraudulent enlistment.  The applicant knew this information would have disqualified her for enlistment and she had falsified her report of medical examination.  

6.  On 28 October 1971, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against her in accordance with Army Regulation 635-206 (Personnel Separations) by reason of fraudulent enlistment due to illegitimate pregnancy.

7.  On 29 October 1971, the applicant acknowledged receipt of the commander's intent to separate her and was advised of the basis for the contemplated separation action, the type of discharge she could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to her.  She waived consideration of her case by a board of officers and personal appearance before a board of officers, and elected not to submit a statement in her own behalf.  She further acknowledged that she understood she may encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to her.

8.  On 29 October 1971, the applicant’s immediate commander initiated separation action against her in accordance with Army Regulation 635-206 due to fraudulent entry.  
9.  On 1 November 1971, the applicant's senior commander recommended approval and the issuance of an Honorable Discharge Certificate.  

10.  On 5 November 1971, the applicant's acting commander also recommended approval of the applicant's discharge under paragraph 27 of Army Regulation 635-206 with an Honorable Discharge Certificate for concealing information which without a waiver would have made her ineligible to enlist and that she did not disclose or request a waiver of the disqualifying information.

11.  On 9 November 1971, the separation authority approved the applicant’s discharge under the provisions of Section V of Army Regulation 635-206 and directed that the applicant be furnished an Honorable Discharge Certificate.  The applicant was accordingly discharged on 26 November 1971.  The DD Form 214 she was issued confirms she was separated with an honorable discharge.  This form further confirms she completed a total of 9 months and 22 days of creditable military service.  Item 11c (Reason and Authority) shows she was assigned Separation Program Number (SPN) "280" and item 27 (Reenlistment Code) shows the entry "4." 

12.  Army Regulation 635-206, in effect at that time, set forth the basic authority for the separation of enlisted personnel.  Section II of the regulation prescribed procedures for processing fraudulent entry cases for misconduct by reason of fraudulent entry into the service.  It also stated that fraudulent entry is the procurement of an enlistment, induction, or period of service through any deliberate material misrepresentation, omission, or concealment, which if known, might have resulted in rejection.  Any incident, which met the foregoing, could be cause for discharge for fraudulent entry.  An undesirable discharge was normally considered appropriate unless the particular circumstances of the case warranted an honorable or general discharge.  When an individual was discharged for fraudulent entry in the Army, the appropriate separation program number was entered on the DD Form 214 in accordance with Appendix I of Army Regulation 635-5 (Separation Documents).

13.  Army Regulation 635-5, in effect at the time, prescribed the separation document that would be furnished each individual who was separated from the Army.  Appendix A of this regulation prescribed the SPN and authority governing separations.  SPN 280 was the appropriate SPN for enlisted members separated for misconduct-fraudulent entry under the provisions of Army Regulation 
635-206.  Those individuals were ineligible for immediate enlistment or reenlistment in the Regular Army.


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 Regular Army (RA) and the US Army Reserve.  Table 3-1 includes 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.  An RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at the time of separation, but disqualification is waivable.  They are ineligible unless a waiver is granted.  An RE-4 applies to Soldiers separated from the last period of service with a nonwaivable disqualification.

15.  Army Regulation 601-210 (Regular Army Enlistment Program), in effect at the time, prescribed eligibility criteria governing the enlistment from civilian life of persons with or without prior service into the Regular Army.  It stated that applicants with prior service in any of the armed forces must meet basic eligibility criteria in Table 2-1. Appendix A of this regulation lists non-waivable moral and administrative disqualifications and Appendix B lists non-waivable disqualifying separations.  Neither Appendix listed fraudulent enlistment as a non-waivable criteria for enlistment.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her RE code changed to a more favorable code.

2.  The evidence of record confirms the applicant’s RE code was assigned based on the fact that she was separated under the provisions of section V of Army Regulation 635-200, by reason of fraudulent enlistment and assigned SPN 280.  Individuals assigned an SPN 280 are ineligible for immediate enlistment or reenlistment in the Regular Army.  However, this does not mean a member could not come back at a later date and request a waiver to reenter the military, if otherwise qualified.  

3.  One could argue that had she disclosed the pregnancy, she would have needed a waiver to enlist at the time.  By failing to do so, she forfeited her right to that waiver and in effect disqualified herself from reentering military service; thus, necessitating an RE-4.  Nevertheless, an RE-4 appears to be too harsh given the circumstances.  In the interest of justice and equity, it would be appropriate to amend her RE code to show she was assigned an RE-3. 


BOARD VOTE:

____X___  ____X___  ___X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by deleting the entry "RE-4" from item 15 of her DD Form 214 and adding the entry "RE-3." 




      _______ _   _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)                                         AR20090014338



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ABCMR Record of Proceedings (cont)                                         AR20090014338



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