IN THE CASE OF:	  

		BOARD DATE:	  22 November 2011

		DOCKET NUMBER:  AR20110010285 


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 the following corrections:

* Reserve and retirement credit
* discharge upgrade to a general (under honorable conditions) discharge
* reentry (RE) code changed to "1"

2.  The applicant states:

* she enlisted in the Delayed Entry Program (DEP) while in high school
* she drilled with the 398th Supply Company, Greenville, South Carolina, until she left for training
* she completed training and returned to the 398th Supply Company
* in May 1992, she enlisted in the Regular Army
* her grandmother got ill and she was sent home
* she applied for a compassionate reassignment which was denied
* she asked to be released from the Regular Army and thought she had been switched back to the 398th Supply Company but was instead sent to Fort Knox, Kentucky, in 1995
* in 1995, she was discharged from active duty and erroneously placed in the U.S. Army Reserve
* she drilled and was paid and would like retirement credit as well as Reserve credit
* she should not have a collection for pay against her once her records are corrected
* she was assigned to the Individual Ready Reserve (IRR) when she did not drill
* she drilled and served her country during the period she was accused of being absent without leave (AWOL)
* she continued to fulfill her Reserve obligation through 1999 and received an honorable discharge from the U.S. Army Reserve
* she is a critical care nurse and would like to serve in a medical Reserve unit
* the errors created are not her fault

3.  The applicant provides:

* self-authored statements 
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* extracts from her military personnel records.

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 available records show the applicant enlisted in the U.S. Army Reserve on 23 January 1991 and was ordered to active duty on 18 June 1991 for initial active duty training (IADT) for a period of approximately 17 weeks.  She completed training and was awarded military occupational specialty 92A (Automated Logistical Specialist).  

3.  The applicant's DD Form 214 for this period of IADT is not available for review.

4.  On 21 May 1992, the applicant enlisted in the Regular Army.  She completed training and was assigned to the U.S. Army Overseas Replacement Detachment, 
Fort Shafter, Hawaii.  The highest rank/grade she attained while on active duty was private/E-2.

5.  Item 35 (Record of Assignment) of the applicant's DA Form 2-1 (Personnel Qualification Record) shows that she departed her unit in an AWOL status on 1 October 1992 and on 1 November 1992 and she was dropped from the rolls.  On 2 September 1994, she returned to military control and was assigned to the Army Personnel Control Facility.  

6.  The applicant's discharge packet is not available.  However, orders show that on 7 July 1995 she was reassigned to the U.S. Army Transition Point, Fort Knox, Kentucky, for transition processing with a discharge date of 13 July 1995.

7.  The applicant's DD Form 214 for the period ending 13 July 1995 contains the following information:

a. Item 9 (Command to which Transferred) shows she was not transferred to a Reserve component.

b. Item 12c (Net Active Service This Period) shows she completed 1 year, 2 months, and 22 days of active service.

c. Item 12d (Total Prior Active Service) shows she completed 4 months and 11 days of prior active service.

d. Item 12e (Total Prior Inactive Service) shows she completed 1 year and 7 days of prior inactive service.

e. Item 24 (Character of Service) shows "Uncharacterized."

f. Item 25 (Separation Authority) shows "Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10."

g. Item 26 (Separation Code) shows "KFS."

h. Item 27 (Reentry Code) shows "3."

i. Item 28 (Narrative Reason for Separation) shows "In Lieu of Trial by Court-Martial."

j.	Item 29 (Dates of Time Lost During This Period) shows the period 1 October 1992 through 1 September 1994 as time lost.

8.  The applicant's record is void of evidence showing she enlisted in the U.S. Army Reserve subsequent to her discharge.  Additionally, there is no evidence showing she attended drills.
9.  The records do not contain orders reassigning the applicant to the 175th Transportation Company, Tacoma, Washington.  However, letters show she had unexcused absences from that unit during the following periods:

* 4 November through 5 November 1995
* 2 December through 3 December 1995
* 6 January through 7 January 1996

10.  Orders show that on 7 February 1996 the applicant was released from the 175th Transportation Company and reassigned to the U.S. Army Reserve
Control Group (Reinforcement), U.S. Army Reserve Personnel Center, St. Louis, Missouri, due to unsatisfactory performance.

11.  On 6 May 2011, the order reassigning the applicant to the U.S. Army 
Reserve Control Group (Reinforcement) was revoked.

12.  There is no indication the applicant applied to the Army Discharge Review
Board for an upgrade of her discharge within its 15-year statute of limitations.

13.  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 member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred,.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of Department of Veterans Affairs benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An under other than honorable conditions discharge would normally be given an individual who was discharged for the good of the Service.

14.  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.  

15.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating 


Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It states, in pertinent part, that the SPD code of "KFS" is the appropriate code to assign to Soldiers who are discharged under the provisions of chapter 10 of Army Regulation 635-200.  The SPD/RE Code Cross Reference Table in effect at the time indicates the RE code of 3 is the proper code to assign members separated with an SPD code of "KFS."
 
16.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the United States Army Reserve.  Chapter 3 of that 
regulation prescribes the basic eligibility for prior service applicants for enlistment.  This chapter includes a list of Armed Forces RE codes, including RA RE codes:

	a.  RE code 1 applies to persons who are considered fully qualified for reentry or continuous service at the time of separation.

	b.  RE code 3 applies to persons who are not considered fully qualified for reentry or continuous service at the time of separation, but the disqualification is waivable.

17.  Army Regulation 635-200, paragraph 3-9a(1), states a separation will be described as entry-level with service uncharacterized if processing is initiated while a Soldier is in an entry-level status, except when characterization under other than honorable conditions is authorized under the reason for separation and is warranted by the circumstances of the case.  Entry level status is defined as the first 180 days of continuous active duty or the first 180 days of continuous active service after a service break of more than 92 days.
 
DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of her discharge to a general (under honorable conditions) discharge, change of her RE code, and Reserve and retirement credit was carefully considered.

2.  Although no DD Form 214 is available for her IADT, orders show she was ordered to active duty for 17 weeks which are depicted on her subsequent DD Form 214.



3.  Although documents surrounding the applicant's discharge are not available, her DD Form 214 shows she elected discharge in lieu of trial by court-martial.  

4.  Her record is void of the specific facts and circumstances surrounding her discharge.  However, it appears she was charged with the commission of offense(s) punishable under the Uniform Code of Military Justice with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, she admitted guilt and waived her opportunity to appear before a court-martial.  It is also presumed that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  

5.  Further, the applicant requests her discharge be upgraded to general (under honorable conditions.  It is therefore presumed that she received an under other than honorable conditions characterization of service.  Her DD Form 214 incorrectly shows her character of service was uncharacterized.  She clearly had more than 180 days of continuous active duty when she was discharged.  However, it is ABCMR policy not to make a Soldier worse off, and therefore no correction will be made to the character of service on her DD Form 214.

6.  It appears the applicant reentered the U.S. Army Reserve at some point following her discharge.  Although the applicant contends she drilled and was paid, the available evidence does not show she participated in drills or training; therefore, she is not entitled to additional Reserve and retirement credit.

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)                                         AR20110006302



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ABCMR Record of Proceedings (cont)                                         AR20110010285



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