IN THE CASE OF:	  

		BOARD DATE:  22 January 2013

		DOCKET NUMBER:  AR20120011396 


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 (Certificate of Release or Discharge from Active Duty) to show a more favorable reentry eligibility (RE) code.

2.  The applicant states, in effect, she was a good Soldier.

3.  The applicant provides her DD Form 214.

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 on 8 January 2002.  She did not complete training and was not awarded a military occupational specialty.  The highest rank/grade she attained while serving on active duty was private/E-1.

3.  On 9 August 2002, court-martial charges were preferred against her for one specification of being absent without leave (AWOL) from 2 July 2002 to 4 August 2002.

4.  On 9 August 2002, she signed a memorandum of admission of AWOL for administrative purposes.

	a.  She declared she had been advised by her defense counsel that the government had not yet received the necessary documentation or records to obtain a conviction by court-martial and her counsel was unable to fully advise her as a result.  Nevertheless, she waived all defenses that may later become available to counsel upon review of the aforementioned documentation or records.

	b.  She knowingly, willingly, and voluntarily admitted to being AWOL from on or about 4 July 2002 to on or about 4 August 2002.  She made the admission for administrative purposes only so that she could process out of the Army.  She further acknowledged she could be given a discharge under other than honorable conditions.

	c.  She declared her defense counsel had fully explained all the legal and social ramifications of the type of discharge she might receive to her complete understanding and satisfaction.  Additionally, she acknowledged the agreement she was signing only pertained to her AWOL.

5.  On 10 August 2002, she consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a discharge under other than honorable conditions, and the procedures and rights available to her.  Subsequent to receiving this legal counsel and without coercion, she voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 
635-200 (Active Duty Enlisted Administrative Separations), chapter 10.

6.  She indicated she understood that by requesting discharge she was admitting guilt to the charge against her or to a lesser-included offense that also authorized the imposition of a bad conduct or a dishonorable discharge.  She further acknowledged she understood that if her discharge request were approved, she could be deprived of many or all Army benefits, she could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and she could be deprived of her rights and benefits as a veteran under both Federal and State laws.

7.  On 11 September 2002, the separation authority approved her 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 with an under other than honorable conditions character of service and reduction to private (PV1)/E-1, if applicable.  Accordingly, she was discharged on 25 September 2002.

8.  Her DD Form 214 shows she was discharged for the good of the service in lieu of trial by court-martial with her service characterized as under other than honorable conditions.  Her DD Form 214 shows she completed 6 months and 17 days of creditable active military service during this period and she had 31 days of lost time.  Item 26 (Separation Code) of this form shows the entry "KFS" and item 27 (Reentry Code) shows the entry "RE-4."

9.  On 10 August 2009, the Army Discharge Revise Board (ADRB) denied her request to upgrade her discharge.  The ADRB determined she was properly and equitably discharged.

10.  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.  This regulation 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.

11.  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.  Table 3-1 includes a list of 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 their last period of service with a nonwaivable disqualification.

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

13.  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 shows the SPD code of KFS has a corresponding RE code of 4.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's records show she was charged with the commission of an offense punishable under the UCMJ 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.  All requirements of law and regulation were met and her rights were fully protected throughout the separation process.

2.  The evidence of record further confirms her 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 RE code associated with this type of discharge is RE-4.  Therefore, she received the appropriate RE code associated with her discharge.

3.  Based on the forgoing evidence, the requested relief 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 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)                                         AR20120011396



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ABCMR Record of Proceedings (cont)                                         AR20120011396



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