IN THE CASE OF:	  

		BOARD DATE:	    4 January 2011

		DOCKET NUMBER:  AR20100015377


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, a change of her narrative reason for separation, reentry eligibility (RE) code, and separation program designator (SPD) code.

2.  The applicant states:

* At the time the Army Discharge Review Board (ADRB) upgraded her discharge, information to justify her request was not in her packet and was never presented to the board for consideration
* According to Army Regulation 635-200 (Personnel Separations), chapter 8, paragraphs 8-5, 8-6, and 8-8, any enlisted female under investigation, court-martial charges, or sentence of a court-martial, who is found to be pregnant may be separated under that chapter
* The individual must have written consent by the commander exercising general court-martial jurisdiction
* In January 2008, she informed her command that she was pregnant
* Nether her command nor her Judge Advocate General (JAG) counselor informed the exercising commander
* She has written letters from witnesses clarifying that her command was aware she was pregnant and misplaced her pregnancy notification
* Had the proper documentation been presented to the commanding officer, the outcome may have been different
* She does not believe that her command nor her JAG counselor allowed her to exercise her right to present her facts to the commanding officer

* Neither her command nor her counselor followed the guidelines of Army Regulation 635-200

3.  The applicant provides:

* A letter from an individual who identifies himself as the “Commander for Veterans"
* A self-authored letter addressed to the Members of the Board
* Chronological Record of Medical Care
* Excerpts from Army Regulation 635-200
* Eight supporting statements from friends, colleagues, and service members
* Bowie State University Unofficial Report Results
* A Family Member Medical Information printout pertaining to her son

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 14 May 1992, in the pay grade of E-1.  She completed training as a motor transport operator.  She remained on active duty through a series of reenlistments and she was promoted through the ranks to staff sergeant (E-6).

2.  Nonjudicial punishment (NJP) was imposed against the applicant on 12 September 2005, for stealing a bedroom set, a DVD player, and five DVD’s from the Army Air Force Exchange Service.

3.  On 6 September 2007, the applicant was notified that she was under investigation for forgery of her commanding officers' signatures and for circumventing her chain of command to submit her Officer Candidate School (OCS) packet.  On the DA Form 3881 (Rights Warning Procedure/Waiver Certificate) that she signed, she elected not to be questioned or to speak without a lawyer.

4.  On 10 January 2008, the applicant was notified that charges were pending against her for the following:

* Four specifications of making false official statements by making false signatures of three senior commissioned officers (lieutenant colonel, colonel, and general officer)
* One specification of wrongfully endeavoring to impede the necessary communication of information into the inquiry of her OCS application
* One specification of absenting herself from her unit

5.  The applicant’s request for discharge for the good of the service in lieu of trial by court-martial is not on file.  However, the appropriate authority approved her request for discharge on 12 February 2008 and he directed the issuance of a discharge under other than honorable conditions.

6.  The applicant was discharged on 26 February 2008, under other than honorable conditions, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  She completed 15 years, 9 months, and 13 days of net active service this period.  She was issued RE code 4 and separation program designator (SPD) code KFS.

7.  On 5 April 2010, the ADRB upgraded the applicant’s discharge from under other than honorable conditions to under honorable conditions (general).  However, the ADRB voted to deny her request for a change to her narrative reason for separation and her RE code.

8.  The applicant submits a letter from an individual who identifies himself as the “Commander for Veterans” and he states:

* He was asked by the applicant to look into her case
* Discharge under other than honorable conditions was not the best decision for her or for the military
* The unit commander had the option of evaluating the applicant to see if she was having problems at home
* The commander could have had a better insight of the issues confronting the applicant
* The applicant's poor decision making was in part due to the fact that she was going through a messy divorce along with the tough demands of her job
* She had an autistic child at home who demanded all of her attention
* He believes her commander reviewed only part of her file and not her entire career
* The applicant’s punishment was the quickest and the easiest way out for the government
* Punishment for her offenses could have been easily handled by a reprimand, Article 15 Proceedings, or a flag on her records to block promotions
* It is clear that the applicant was under duress which drove her to have poor judgment and to make poor decisions
* She has paid for her mistakes as her career has been ruined and justice has been served


9.  In her self-authored letter she basically reiterates the contentions she made in her application to the Board stating that if the proper authority had been informed of her pregnancy, there may have been a different outcome to the type of action taken against her for the mistakes she made.  She also states that she deeply regrets her action and she would like to provide a better future for her children.

10.  The Chronological Record of Medical Care she submits shows she had a positive pregnancy test on 19 February 2008.  The eight supporting statements attest to her good character and conduct, both while in the Army and since her discharge.  The statements also verify the applicant's contention that she was pregnant and that the information was never disseminated through her chain of command as stated in Army Regulation 635-200, chapter 8.

11.  The Bowie State University Unofficial Report Results shows she is active in the Bowie State Masters Degree program.  The Family Member Medical Information printout shows that her son is diagnosed with infantile autism and attention deficit disorder.

12.  Army Regulation 635-200, chapter 8 provides for the separation of enlisted women for pregnancy.  It states that the unit commander will direct an enlisted woman who believes that she is pregnant or whose physical condition indicates that she might be pregnant, to report for diagnosis by a physician at the servicing Armed Forces medical treatment facility.  When service medical authorities determine that an enlisted woman is pregnant, she will be counseled and assisted as required by chapter 8, section II.  An enlisted woman under investigation, court-martial charges, or sentence of court-martial who is certified by a physician on duty at the Armed Forces medical treatment facility to be pregnant may be separated under this chapter.  However, she must have the written consent of the commander exercising general court-martial jurisdiction over the enlisted woman.

13.  Army Regulation 635-200, chapter 10, provides 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.

14.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) states 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 covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army, U.S. Army Reserve, and Army National Guard.  Chapter 3 prescribes basic eligibility for prior-service applicants for enlistment and includes a list of Armed Forces RE codes.  An RE code of 4 applies to persons who have a non-waivable disqualification.

15.  Army Regulation 635-5-1 (SPD Codes) prescribes the specific authorities (regulatory, statutory, or other directives) and reasons for the separation of members from active military service and the SPD code to be used for these stated reasons.

16.  The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Regular Army Soldiers and Reserve Component Soldiers separated for cause.  The SPD code KFS has a corresponding RE code of 4.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions and her supporting documents have been considered.

2.  She is commended on her post-service conduct and accomplishments.  However, they are not sufficiently mitigating to warrant the requested relief.

3.  Although she contends that she could have or should have been discharged under the provisions of Army Regulation 635-200, chapter 8, for pregnancy, she was not.  She did not request discharge for pregnancy, and even if she had her commander was under no obligation to approve that request.  She submitted a request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  The appropriate authority approved her request for discharge based on the charges that were pending against her.

4.  If she believed that she was not being properly advised by counsel or that her chain of command was not disseminating information regarding her pregnancy to the proper authorities, she could have demanded to stand trial by court-martial.  While the individual who identifies himself as the “Commander for Veterans” provides his opinion on the commander’s actions in this case and the degree to which the applicant should have been punished, his opinion is speculation at best and is also not sufficiently mitigating to warrant the requested relief.

5.  The approval authority was within his rights to accept her request for discharge for the good of the service in lieu of trial by court-martial.  The applicant was furnished a DD Form 214 to reflect this information.  She was issued an SPD code which coincides with her narrative reason for separation and the SPD code KFS has a corresponding RE code 4.

6.  Although the supporting statements she provided are very informative, the applicant has not shown error or injustice in the RE or SPD codes she was issued.

7.  In view of the foregoing, the applicant’s request should be denied.

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)                                         AR20090005994



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ABCMR Record of Proceedings (cont)                                         AR20100015377



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