BOARD DATE:	  8 March 2011

		DOCKET NUMBER:  AR20100020239 


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 upgrade of her under other than honorable conditions discharge to a general discharge.  She also requests the reason for separation and reentry eligibility (RE) code be changed on her DD Form 214 (Certificate of Release or Discharge from Active Duty) to allow her to reenter the military.

2.  The applicant states that following a precautionary statement by a drill instructor that sexual misconduct such as rapes had occurred on a certain field, a private whispered to her that he was going to take her to that field and rape her.  She states she was uncomfortable about this and it was a problem for her because a couple of months prior to joining the military she was raped.  She states she spoke with a counselor and requested a discharge, but it was not granted.  She adds she was 19 years of age at the time, immature, scared, hurt, and did not know how to handle the situation.  She further states that the incident was 8 years ago, she is now 27 years of age and a single mother asking for a chance for redemption.

3.  The applicant provides her DD Form 214, birth certificate, social security number card, and a social security printout.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show she enlisted in the Regular Army on 7 March 2002.  She did not complete initial entry training and was not awarded a military occupational specialty.  The highest grade she held was pay grade E-1.

2.  Evidence based on a DA Form 4187 (Personnel Action) and DD Form 616 (Report of Return of Absentee) indicate the applicant was absent without leave (AWOL) during the period 21 June to 4 September 2002.

3.  The applicant's discharge packet is not contained in her records.

4.  The applicant's DD Form 214 shows she was discharged on 27 September 2002 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, in lieu of trial by court martial and issued an under other than honorable conditions discharge.  The DD Form 214 shows she completed a total of 4 months and 6 days of active military service.

5.  Item 29 (Dates of Time Lost During This Period) of her DD Form 214 contains the entry "UNDER 10 USC 972:  20020621-20020903."  Her DD Form 214 shows "KFS" in item 26 (Separation Code), "4" in item 27 (Reentry Code), and "IN LIEU OF TRIAL BY COURT-MARTIAL" in item 28 (Narrative Reason for Separation).

6.  On 20 May 2009, the Army Discharge Review Board denied the applicant's request for an upgrade of her discharge.
 
7.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes), Table 2-3, states the SPD code KFS denotes in lieu of trial by court-martial.

8.  The U.S. Army Human Resources Command publishes a cross-reference list of SPD and RE codes.  The cross-reference table in effect at the time showed that an SPD code of KFS was assigned an RE code of 4.

9.  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 and the U.S. Army Reserve Components.  Chapter 3 prescribes basic eligibility for prior-service applicants for enlistment and includes a list of Armed Forces RE codes.  Table 3-1 states that RE-4 applies to a Soldier who is separated from the last period of service with a nonwaivable disqualification.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a Soldier may request discharge in lieu of trial by court-martial.  By submitting this request for discharge, she would have acknowledged that she understood the elements of the offense(s) charged and was guilty of the charge(s) against her or of (a) lesser included offense(s) therein contained that also authorized the imposition of a bad conduct or dishonorable discharge.  The Soldier's written request would include an acknowledgement that the Soldier understood that if his or her request for discharge were accepted, the Soldier could be discharged under conditions other than honorable.  He or she would also acknowledge that he or she had been advised and understood the possible effects of a discharge under other than honorable conditions and that, as a result of the issuance of such a discharge, would be deprived of many or all Army benefits, that he or she may be ineligible for many or all benefits administered by the Department of Veterans Affairs, and that he or she may be deprived of his or her rights and benefits as a veteran under both Federal and State laws.

11.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requested an upgrade of her discharge and change of her reason for separation and RE code.  She was voluntarily discharged under the provisions of Army Regulation 635-200, chapter 10.  In order to be discharged under chapter 10, she would have voluntarily requested discharge in lieu of a trial by court-martial.

2.  Her records show she had 75 days of lost time due to being AWOL.  Based on her serious offense, her service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered her service unsatisfactory.  Therefore, she is not entitled to a general discharge.

3.  In the absence of evidence to the contrary, it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

4.  The RE code is based on the reason for discharge.  There is no evidence in the available record and she provided no evidence that shows irregularity in the assignment of her RE code.  The SPD cross-reference table shows she was assigned an RE code of 4 based on the reason for discharge.  As such, she was properly assigned an RE code of 4.  She was disqualified from reenlistment based on misconduct and the disqualification is non-waivable under Army regulations.

5.  The applicant's narrative reason for separation, separation code, and RE code were administratively correct and in conformance with applicable regulations at the time of her separation.

6.  While it is commendable that she wants to join the military, there is no basis for changing a properly-assigned narrative reason for separation, separation code, or RE code.

7.  Therefore, there is no basis for granting the applicant's requested relief.

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 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)                                         AR20100020239



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ABCMR Record of Proceedings (cont)                                         AR20100020239



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