IN THE CASE OF: BOARD DATE: 2 November 2017 DOCKET NUMBER: AR20160016643 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. 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. IN THE CASE OF: BOARD DATE: 2 November 2017 DOCKET NUMBER: AR20160016643 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :AIR :RAS :RML DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 2 November 2017 DOCKET NUMBER: AR20160016643 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 under other than honorable conditions discharge and correction or the narrative reason for her separation. 2. The applicant states she was discharged for not coming back on time during the Christmas/New Year break in 2007. She was told she was dropped from the rolls and she should go to Fort Knox, KY for discharge. She told the officer that she wanted to return to her unit but he said no. She was immediately discharged with a Reentry (RE) code of 4. She was 19 years old when this happened. She is now 29 years old with two children who deserve a bright future. She would like to reenlist and she is willing to take whatever training that is required to enlist in the military. 3. The applicant provides no additional evidence. 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, and 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 20 November 2006. She was assigned to Company B, 2nd Battalion, 13th Infantry Regiment, Fort Jackson, SC, for training. 3. On 26 January 2007, the applicant departed her unit in an absent without leave (AWOL) status and on 25 February 2007, she was dropped from Army rolls as a deserter. She ultimately surrendered and returned to military control on 25 February 2008. 4. She was attached to the U.S. Army Personnel Control Facility, Special Processing Company, Fort Knox, KY, for disposition of the charges. 5. On 28 February 2008, court-martial charges were preferred against the applicant for one specification of being AWOL from on or about 26 January 2007 to 25 February 2008. 6. On 28 February 2008, the applicant 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 an under other than honorable conditions discharge if the request were approved, and the procedures and rights available to her. Following consultation with legal counsel, she requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10, Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations). 7. In her request for discharge, the applicant acknowledged: a. she was making the request of her own free will and she had not been subjected to coercion whatsoever by any person and she had been advised of the implications that were attached; b. she understood by requesting discharge she was admitting guilt to the charges against her or to a lesser-included offense that also authorized the imposition of a bad conduct discharge or a dishonorable discharge; c. she understood if her discharge request was 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; and d. she elected not to submit a statement on her own behalf. 8. On 21 March 2008, the separation authority approved the applicant's request for discharge and directed her reduction to the lowest enlisted grade, if applicable, and receipt of a discharge under other than honorable conditions. 9. The applicant was discharged accordingly on 9 April 2008. Her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she was discharged under other than honorable conditions in lieu of trial by court-martial under the provisions of chapter 10, AR 635-200. She completed 3 months and 21 days of creditable active military service and she was assigned a separation code of KFS and an RE code of 4. Her Enlisted Record Brief shows she had 364 days of lost time. 10. On 5 August 2010 (AR20100008586), the ABCMR reviewed her RE Code and found it was proper. The ABCMR denied her request to change the RE code from RE-4 to RE-3. 11. On 21 June 2011 (AR20100023953), the Army Discharge Review Board reviewed her characterization of service and found it proper and equitable. As such, the board denied her petition for an upgrade of her discharge. REFERENCE: Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. 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. b. 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. c. 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. DISCUSSION: 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, AR 635-200 are voluntary requests for discharge in lieu of trial by court-martial. The applicant 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 the rights of the applicant were fully protected throughout the separation process. 2. Based on her record of indiscipline, the separation authority determined that her service did not meet the standards of acceptable conduct and performance of duty for Army personnel and her misconduct rendered her service unsatisfactory. The separation authority determined her service did not rise to the level required for a general or an honorable discharge. 3. The evidence of record further confirms that her narrative reason for separation and separation code were assigned based on the fact that she was discharged under the provisions of AR 635-200, chapter 10, in lieu of trial by court-martial. Absent the AWOL offense there was no reason to prefer court-martial charges against her, and absent the court-martial charges, there was no reason to process her discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160016643 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160016643 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2