IN THE CASE OF:	  

		BOARD DATE:	      17 April 2012

		DOCKET NUMBER:  AR20110021198 


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 an upgrade of her discharge and reentry eligibility (RE) code so she may reenter military service.

2.  The applicant states, in effect, she started to have increasingly severe pain in her stomach while in advanced individual training.  She was seen multiple times by on-post physicians who were unable to diagnose the origin of her pain.  She states she was approved for a medical discharge, but was informed it would take up to 6 months before she would be released to go home.  She further states the pain was so horrible and constant she felt the only thing she could do was to leave without permission and return home for treatment.  She states she was    19 years old, young and immature, and looked at leaving as the only answer.  Once home, she immediately was seen by her doctor who diagnosed her with endometriosis and performed laparoscopic surgery.  She further states she returned to post prior to being away 30 days, believing she was not absent without leave (AWOL).  She states she was sent to jail for 30 days and received an under other than honorable conditions discharge with an RE code of 4.  She now believes her discharge should be upgraded and her RE code changed because she is more responsible and mature and would like the chance to prove herself and serve in the military.

3.  The applicant provides:

* a self-authored statement
* two letters of support

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* 3-page Medical Center Operative Report

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 1 March 1985 and enlisted in the Regular Army at 19 years, 4 months, and 14 days of age on 14 July 2004.  She completed basic combat training and she was subsequently reassigned to Fort Jackson, SC, for completion of advanced individual training.

3.  On 9 February 2005, she departed her training unit in an AWOL status and on 12 March 2005, she was dropped from the Army rolls.  On 15 March 2005, she surrendered to military authorities at Fort Knox, KY.

4.  On 17 March 2005, court-martial charges were preferred against the applicant for being AWOL from 9 February 2005 to 12 March 2005.

5.  On 17 March 2005, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions.  She was advised of the maximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of a request for discharge, and of the procedures and rights that were available to her.  Following consultation with legal counsel, the applicant requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10, Army Regulation 635-200 (Personnel Separations).

6.  In her request for discharge, she acknowledged she was making this request of her own free will and had not been subjected to any coercion whatsoever by any person.  She also understood that by requesting a discharge she was admitting guilt to the charges against her or of a lesser included offense that also authorized the imposition of a bad conduct discharge or a discharge under other than honorable conditions.  She further acknowledged she understood that if the discharge request were approved she could be deprived of many or all Army benefits, that she could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and that she could be deprived of her rights and benefits as a veteran under both Federal and State laws.  She did not submit statements on her own behalf with her request.

7.  On 31 March 2005, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200 and directed the issuance of an under other than honorable conditions discharge.  The separation authority also directed that the applicant be reduced to the lowest enlisted grade.  On 8 April 2005, the applicant was accordingly discharged.

8.  The DD Form 214 she was issued shows she was discharged for the good of the service in lieu of a trial by court-martial with an under other than honorable conditions discharge.  She had completed 7 months and 24 days of creditable active military service and she had 31 days of lost time during this period of enlistment.  Item 26 (Separation Code) of this form shows the entry "KFS" and item 27 (Reentry Code) shows the entry "4."

9.  The applicant submitted undated statements from her husband and mother attesting to the applicant's maturity and desire to reenter military service.  She also provided a 3-page Operative Report which details her surgical procedure for endometriosis.

10.  On 26 January 2007, the applicant was informed her application to the Army Discharge Review Board for an upgrade of her discharge was denied.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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.

12.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

13.  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.

14.  Army Regulation 635-200 further 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.

15.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army, U.S. Army Reserve, and Army National Guard.  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 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.

16.  Army Regulation 635-5-1 (Separation Program Designator Codes (SPD)) states that SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  The SPD code of "KFS" is the correct code for Soldiers separating under the provisions of chapter 10, Army Regulation 635-200.

17.  The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army and Reserve Component Soldiers.  This cross reference table in effect at the time of the applicant's discharge shows the SPD code of "KFS" shows a corresponding RE code of "4."

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request to upgrade her discharge and RE code so she may reenter military service has been carefully examined and found to lack merit.

2.  The evidence of record shows the applicant was charged with the commission of an offense punishable under the Uniform Code of Military Justice with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  She voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.  There is no evidence she was coerced into signing any documents.   All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  The evidence of record confirms the applicant's RE code was assigned based on her separation under the provisions of chapter 10 of Army Regulation 635-200 in lieu of trial by court-martial.  The separation code associated with this type of discharge is "KFS" and the appropriate RE code associated with this type of discharge and/or SPD code is "RE-4."  Therefore, the applicant was assigned the appropriate RE code.

4.  With respect to her age and maturity, the applicant was over 19 years of age at the time of her enlistment.  There is no evidence which indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service obligations.  

5.  Notwithstanding the statements provided by the applicant, post-service conduct and good intentions alone are not a basis for upgrading a discharge.  Based on her record of indiscipline the applicant's service clearly did not meet the standard of acceptable conduct and performance of duty for Army personnel.  
Therefore, the applicant is not entitled to an honorable or a general discharge, or 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)                                         AR20110021198



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ABCMR Record of Proceedings (cont)                                         AR20110021198



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