BOARD DATE:	  11 October 2012

		DOCKET NUMBER:  AR20120006190 


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, correction of her DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to:

* change item 15 (Reenlistment Code) from reentry eligibility (RE) code 4 to a more favorable code
* delete from item 26a (Non-Pay Periods Time Lost) the 34 days of time lost
* delete from item 30 (Remarks) the entry " Table 2-4 (Nonwaivable Moral and Administrative Disqualifications), Army Regulation 601-280 (Army Reenlistment Program) applies"

2.  The applicant states, in effect, she was not absent without leave (AWOL) for 34 days; she was only absent for a few hours, which is why she would like her time lost deleted and her RE code changed to one that is more favorable.

3.  The applicant provides a self-authored statement, her DD Form 214, and a copy of her Marriage Certificate.

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 enlisted in the Regular Army (RA) on 9 June 1969.  She held military occupational specialty 72B (Communications Center Specialist).  The highest rank/grade she attained while serving on active duty was private first class (PFC)/E-3.

3.  Her record contains a DA Form 2627-1 (Record of Proceedings Under
Article 15, Uniform Code of Military Justice (UCMJ)), dated 12 February 1970, that shows she accepted non-judicial punishment (NJP) for being AWOL from
4 February 1970 to 11 February 1970.  

4.  Her record contains a memorandum, dated 16 June 1970, wherein it was requested the applicant be dropped from the rolls of the Army because she had been determined to be in a knowledgeable AWOL status.

5.  Her record contains a memorandum, dated 17 June 1970, that states she had entered into an AWOL status on 13 June 1970.

6.  Her DA Form 20 (Enlisted Qualification Record) shows she was AWOL on the following dates:

* 4 February 1970 to 10 February 1970 (7 days)
* 6 June 1970 to 7 June 1970 (2 Days)
* 13 June 1970 to 7 July 1970 (25 days)

7.  On 15 July 1970, the Chief, OB-GYN Services, Fort Gordon, GA, certified the applicant was pregnant.

8.  On 20 July 1970, the applicant's commander recommended her discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 8 (Discharge of Enlisted Women - Marriage, Pregnancy, or Parenthood), section III (Pregnancy).  His commander indicated her conduct and efficiency were unsatisfactory.

9.  On 21 July 1970, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 8, by reason of pregnancy.

10.  On 29 July 1970, she was honorably discharged.  Her DD Form 214 shows she completed 1 year and 17 days of total active service with 34 days of time lost.  This form further shows she was discharged under the provisions of Army Regulation 635-200, chapter 8, section III, with an assigned Separation Program Number (SPN) of 221 and an RE code of 4.  Additionally, the remarks section of her DD Form 214 contained the entry "Army Regulation 601-280, table 2-4 applies."

11.  Army Regulation 635-5 (Separation Documents), in effect at the time of the applicant's discharge, provides the specific authorities, reasons for separating Soldiers from active duty, and the SPN to be entered on the DD Form 214.  It states in Appendix A (Enlisted Personnel) that SPN 221 would be assigned to members separated under the provisions of Army Regulation 635-200, chapter 8, section III by reason of pregnancy, and that members who were discharged for this reason were not eligible for reenlistment.  The regulation provided no provisions for waiver of the disqualification; therefore, it mandated the assignment of RE-4.

12.  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.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers the eligibility criteria, policies, and procedures for enlistment and processing into the RA and the U.S. Army Reserve.  Table 3-1 included a list of the RA RE codes:

	a.  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.

	b.  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 for enlistment unless a waiver is granted.

	c.  RE-4 applies to Soldiers who are separated from their last period of service with a nonwaivable disqualification.  They are ineligible for enlistment.

13.  Army Regulation 635-5 further states the DD Form 214 is a summary of a Soldier's most recent period of continuous active duty and provides the individual with documentary evidence of their military service.  Item 26a of the version in effect at the time shows time lost under Title 10, U.S. Code, section 972.  The regulation requires that the dates of time lost during the current enlistment will be entered on the DD Form 214.  For enlisted personnel, the inclusive periods of time lost to be made good under Title 10, U.S. Code, section 972, and periods of non-inclusive time after expiration of term of service (ETS) will be entered.  Time lost under Title 10, U.S. Code, section 972 is not creditable service for pay, retirement, or veteran's benefits; however, the Army preserves a record of it (even after it has been made up) to explain which service between the date of entry on active duty and the date of separation is creditable service.

14.  Army Regulation 601-280, table 2-4, in effect at the time, states male and female applicants for RA reenlistment to whom disqualifications listed in table 2-4 apply, are ineligible for RA reenlistment at any time and requests for waivers will not be submitted.  The following reasons for disqualification for reenlistment are listed in this table:

* Insane
* Having a history of psychotic disorder
* Questionable moral character, history of antisocial behavior, sexual perversion, having frequent difficulties with law enforcement agencies 
* Not accepted for further military service because of venereal disease
* Having a history of frequent or chronic venereal disease
* Separated for unfitness or unsuitability with 18 or more years of service completed
* Separated with a "Bar to Reenlistment" in effect after completion of 18 or more years of service
* Conscientious objector or person with religious convictions which preclude unrestricted assignments
* Persons who have received severance pay
* Reenlistment not clearly consistent with interest of national security or persons who refuse to sign DD Form 98 (Armed Forces Security Questionnaire) or DD Form 898 (Statement of Personal History)
* Persons who signed a statement of intent to reenlist, received services based on the statement (such as transportation of dependents, movement of household goods or automobile) then at ETS, declined to reenlist
* Separated because physically disqualified upon order to active duty
* Separated under the Military Personnel Security Program 
* Separated for physical disability with entitlement to receive disability severance pay
* Released from active duty by reason of physical disability and revert to inactive status for the purpose of retirement in lieu of discharge with entitlement to receive disability severance pay
* Separated for physical disability resulting from intentional misconduct or willful neglect or incurred during period of unauthorized absence and not entitled to severance pay
* Separated for physical disability-existing prior to service -established by physical evaluation board proceedings 
* Separated as a conscientious objector 

DISCUSSION AND CONCLUSIONS:

1.  The entry "Army Regulation 601-280, table 2-4 applies" placed in the remarks section of her DD Form 214 mandates a nonwaivable RE-4.  However, there is no evidence that the regulatory criteria meriting this particular entry does applies to the applicant.  Therefore, this entry should be removed from the remarks section of her DD Form 214.  

2.  However, she was, otherwise, properly and equitably discharged in accordance with the regulatory guidance at the time, and at the time a separation for pregnancy received an RE-4.  

3.  The evidence of record shows her extensive history of AWOL was properly annotated on her DD Form 214, and she has provided no evidence to dispute the findings in her military record.  Therefore, there is no basis for changing the entries of time lost on her DD Form 214.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x__  ___x_____  ___x_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

* Deleting from the remarks section of her DD Form 214, the entry, ""Army Regulation 601-280, table 2-4 applies"

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to changing the RE code of removing the lost time from her DD Form 214.  



      __________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)                                         AR20120006190



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ABCMR Record of Proceedings (cont)                                         AR20120006190



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