IN THE CASE OF:	  

		BOARD DATE:	  12 August 2010

		DOCKET NUMBER:  AR20100008039 


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, her Reentry (RE) Code "4" be changed to a more favorable code so she can rejoin the Army and serve with her fellow Soldiers to protect this great nation.

2.  The applicant states, in effect, she continues to have trouble seeking employment.  She has been made aware that her military status and service records are preventing her from reaching her full potential as an employee of the federal government.  She requests her records be reviewed so she can continue to serve her country as a member of the federal workforce. 

3.  She states she was improperly discharged and was not notified despite staying in contact with members of her platoon.  She contends that in 2005 she was brought back to Fort Stewart, Georgia and asked if she would want to finish out the time she owed.  Despite her reply of "yes," she was still discharged. 

4.  The applicant provides a copy of a letter of recommendation from the Transportation Security Administration.

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 initially enlisted in the New York Army National Guard (NYARNG) on 25 November 1997 for a period of 8 years.  She completed basic combat and advanced individual training and was awarded military occupational specialty 71L (Administrative Specialist).  She later enlisted in the Regular Army on 23 April 1999, for a period of 3 years. 

3.  A DD Form 458 (Charge Sheet) shows the applicant was charged with one violation of the Uniform Code of Military Justice (UCMJ) in that she did, on or about 3 September 1999, without authority, with intent to remain away permanently, absent herself from her unit located at Fort Stewart, Georgia and did remain so absent in desertion until she was apprehended on or about 19 May 2005. 

4.  On 27 June 2005, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.  Prior to submitting her request, the applicant consulted with legal counsel and she was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to her.  The applicant was advised that she may submit any statements she desired in her own behalf which would accompany her request for discharge.  The applicant indicated she would submit a statement with her request.

5.  The applicant stated, in effect, she made a terrible mistake and she takes full responsibility for her actions.  Her intent was never to hurt anyone or mislead the Army or to avoid serving.  In September 1999 she was under the care of a doctor at the division's mental health facility.  She had been hospitalized twice for attempted suicide.  She claimed that while she was in the hospital, her company commander brought her paperwork to initiate her medical board.  Once she signed the paperwork, he told her she was free to go.  She interpreted that to mean that she was out of the Army and could leave Fort Stewart.  She arranged for her husband to move her and they settled in South Carolina.  She states she mistakenly took the barracks keys so she mailed them back to her commander with a letter of apology for failing to return them.  
6.  She continues her statement by contending that when she moved to New York City soon after, she filed her taxes, worked for the county, received financial aid for school and stayed in contact with friends from Fort Stewart.  She claims she was totally unaware she had been counted absent without leave (AWOL) until the state police came to her door in May 2005.  She lost her home, job, and custody of her son.  She states she would have turned herself in had she known she was in an AWOL status.  

7.  On 6 July 2005, the separation authority approved the applicant's request for discharge and directed the issuance of a general, under honorable conditions discharge certificate.  On 15 July 2005, the applicant was discharged accordingly.

8.  The DD Form 214 (Certificate or Release or Discharge from Active Duty), dated 15 July 2005, shows she was discharged under the provisions of Army Regulation 635-200, chapter 10, with an under honorable conditions character of service.  Item 26 (Separation Code) shows she was assigned a separation code of "KFS."  Item 27 (Reentry Code) shows she was assigned an RE Code "4."  Item 28 (Narrative Reason for Separation) shows, "in lieu of trial by court-martial."  She had completed 5 months and 7 days of total active service for that period. 

9.  The applicant provides a letter of recommendation from her current employer which basically recommends her reentry into the U.S. Armed Forces.  It states, in effect, she always displays a positive attitude and offers new ideas consistently.  She had filled positions of leadership and has received several awards for finding prohibited and hazardous items.  She also received numerous awards for supervising and training teams.

10.  There is no available evidence that the applicant applied to the Army Discharge Review Board (ADRB) to upgrade her discharge.

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, 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.

12.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) states, in pertinent part, prior to discharge or release from active duty, individuals will be assigned reentry codes, based on their service records or the reason for discharge.  Chapter 3 of the same regulation prescribes basic eligibility for prior service applicants for enlistment and includes a list of Armed Forces RE codes.

13.  RE code "4" applies to persons not qualified for continued service by virtue of being separated from the service with non-waivable disqualifications such as persons discharged for the good of the service in lieu of trial by court-martial.

14.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that separation codes are three-character alphabetic combinations, which identify reasons for, and types of separation from active duty.  The primary purpose of a separation code is to provide statistical accounting of reasons for separation.  They are intended exclusively for the internal use of DOD and the military services to assist in the collection and analysis of separation data.  It notes that "KFS" is the appropriate separation code for individuals separated for the convenience of the Government in lieu of trial by court-martial.

15.  Army Regulation 635-5 (Separation Documents), Table 2-3 (SPD/RE Code Cross Reference Table), establishes the proper reentry codes to assign to soldiers separating from the Army.  This table confirms RE Code "4" is the appropriate RE code for individuals who receive an SPD code of "KFS."

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention her RE Code "4" should changed to a more favorable code because she was improperly discharged was carefully considered; however, it is not supported by the evidence.

2.  The applicant's post-service achievements and conduct are noted; however, discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests 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 applicant has provided no evidence to show that the RE Code issued to her at the time of discharge was improper or inequitable or should be changed now.  The applicant's separation code, "KFS" is consistent with the reason for her separation, "in lieu of trail by court-martial," and the RE Code of "4" which was applied to her DD Form 214 is consistent with the separation code; therefore, the applicant is not entitled to a change of her RE Code.
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)                                         AR20100008039





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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)