IN THE CASE OF:	  

		BOARD DATE:	  23 July 2013

		DOCKET NUMBER:  AR20120020655 


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 correction of her DD Form 214 (Certificate of Release or Discharge from Active Duty) to show she was retired from active duty.

2.  The applicant states, in effect, that although she was pending a medical evaluation board (MEB), she was denied reenlistment based on outstanding assault charges.  Those charges were later dropped but she was discharged from the Army after serving honorably for 15 years and 6 months.  She contends her record should be corrected because she was cleared of all charges and because the Department of Veterans Affairs (VA) has granted her a 90-percent disability rating.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* State of North Carolina, Dismissal Notice of Reinstatement, dated 4 September 2012
* VA Service Connected Compensation Decision, dated 16 October 2012
* VA Rating Decision, dated 24 September 2012

CONSIDERATION OF EVIDENCE:

1.  On 23 January 1996, the applicant enlisted in the Regular Army.  After completing initial entry training, she was awarded military occupational specialty 88M (Motor Transport Operator).

2.  Her Army Military Human Resource Record (AMHRR) contains a Medical Command Form 104 (Report of Serious/Sensitive Incident), dated 15 November 2010.  This document shows that on 13 February 2008 she was assigned to the Warrior Transition Battalion (WTB), Fort Bragg, NC pending MEB processing.  On 15 November 2010, she was involved in a domestic disturbance incident (gunshot).  The lead investigator concluded that the applicant's spouse assaulted her.  Her spouse was detained pending charges of misdemeanor assault on a female (simple assault); however, it was unclear and the investigation was still ongoing as to whether the applicant shot her spouse in the leg in self defense.

3.  On 13 January 2011, the applicant's commander was notified by the Drug Testing Center that she tested positive for cocaine.

4.  On 2 June 2011, she received a General Officer Memorandum of Reprimand (GOMOR) for acts of domestic violence and drug use.  The commanding general stated that the applicant had a history of cocaine abuse and a serious addiction.  Further, she admitted to being responsible for escalating the altercation with her spouse to the point that it became violent.

5.  Her record does not contain a bar to reenlistment; however, Section I (Assignment Information) of her Enlisted Record Brief (ERB) does show she was flagged for elimination on 25 January 2011 and flagged again on 16 February 2011 for punitive action.

6.  On 20 October 2011, she was honorably separated.  Her DD Form 214 shows in:

* Item 12c (Net Active Service this Period) -"15  08  28"
* item 25 (Separation Authority) – "AR 635-200, CHAP 4"
* item 26 (Separation Code) - "KBK"
* item 27 (Reentry Code) -"1"
* item 28 (Narrative Reason for Separation) – "COMPLETION OF REQUIRED ACTIVE SERVICE"

7.  The applicant provided:

	a.  A self-authored statement in which she contends that she was the victim of domestic violence.  During an attempt to flee the situation she was left with no other choice but to defend herself and her son, which resulted in a shooting.  Unfortunately, the state of North Carolina has guidelines that allow the abuser to press charges.  She was charged with assault with a deadly weapon.  Due to her charges she was prevented from reenlisting, even though she was going through an MEB.  She was forced to separate from the Army at her expiration term of service (ETS) date with almost 16 years of active duty service.  She currently has a 90-percent disability rating from the VA.  She feels that based on her excellent service, disability rating, and the fact that she was cleared of the charges that she is entitled to a military retirement.

	b.  A Dismissal Notice of Reinstatement, dated 11 September 2012, which shows the prosecutor entered a dismissal of charges based on a request by the primary witnesses and evidence of imperfect self-defense.

	c.   Her VA disability rating decision letters which show she was granted a combined service connected disability rating of 90 percent.

8.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPD codes to be used for these stated reasons.  The SPD code of "KBK" specifies the narrative reason for separation as voluntary release from active duty for "completion of required active service" and the authority for separation under this SPD is Army Regulation 635-200, chapter 4.  The SPD/RE Code Cross Reference Table establishes RE code 1 or 3 as the proper codes to assign to Soldiers separated for this reason.

* RE-1 applies to Soldiers completing their terms of active service who are considered qualified to reenter the U.S. Army; they are qualified for enlistment if all other criteria are met
* RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at the time of separation, but disqualification is waivable; they are ineligible unless a waiver is granted

9.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) states a Soldier who has completed 20, but less than 30, years of active Federal service (AFS) in the U.S. Armed Forces may, at the discretion of the Secretary of the Army, be retired at his/her request.  The Soldier must have completed all required service obligations at the time of retirement.

10.  Army Regulation 901-280 (Personnel Procurement - Army Retention Program) states that a Solider may be discharged for immediate reenlistment at specific points in time unless the Soldier is flagged.

11.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) provides that the Board begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.
DISCUSSION AND CONCLUSIONS:

1.  The applicant requests correction of her DD Form 214 to show she was retired from active duty.

2.  The evidence of record shows she entered active duty on 23 January 1996 and she was honorably separated on 20 October 2011 by reason of completion of required active service.  Her records show she was involved in a domestic violence incident in which she shot her spouse in the leg and that she was awaiting MEB processing at the time of this incident.  Her records also show she tested positive for cocaine on 8 December 2010.  As a result of these instances of misconduct she received a GOMOR on 2 June 2011.

3.  Her ERB shows she was flagged for elimination and punitive action in the months prior to her separation and it must be presumed that her previously mentioned misconduct prevented her from reenlisting and led to her separation at her ETS.

4.  Regulatory guidance requires members to complete a minimum of 20 years of active service in order to be eligible for retirement.  The record shows she completed 15 years, 8 months, and 28 days of active service; therefore, she is not eligible for retirement.

5.  All requirements of law and regulation were met, and the applicant's rights were fully protected throughout the separation process.  Based on the foregoing, her request should be denied.

6.  It is unclear why her DD Form 214 shows that she was voluntarily separated from active duty rather than discharged or why her DD Form 214 lists a favorable reentry code that would technically allow her to reenlist.  These are most likely administrative errors that weigh in favor of the applicant.  It is the policy of the Board not to correct an administrative error if the correction would result in a less favorable action to the applicant; therefore, no action will be taken to correct the type of separation or reentry code listed on her DD Form 214.









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)                                         AR20120020655





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ABCMR Record of Proceedings (cont)                                         AR20120020655



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