IN THE CASE OF: BOARD DATE: 22 August 2022 DOCKET NUMBER: AR20220001062 APPLICANT REQUESTS: Her under honorable conditions (general) discharge be upgraded to an honorable discharge and her reentry eligibility (RE) code be changed. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, U.S. Code (USC), Section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states: a. She is requesting an upgrade to her discharge RE code, due to it being inequitably coded. She entered the service at an early age straight out of high school, not really knowing and understanding the world within itself. She wasn't a bad child growing up and she did understand the true meaning of "family" until she decided to venture off as an oblivious adolescent. She enlisted to gain a successful career and new experiences, instead, she received the total opposite. b. She came in the service as an innocent but very misunderstood young lady and was welcomed into the Army by having to be alone and defend herself while at her lowest and bearing a child for the first time. She was hoping for more support and guidance from her military family instead she got verbally and mentally abused. She tried to fathom the thought of bringing her little girl up around cruel, disloyal, disrespectful, and selfish individuals who abused their Army values. c. She began to wither into a severe deep depression and anxiety, never opening up to anyone about all that she endured. Her behavior while on duty was a cry for help and understanding but her entire chain of command failed her. She was told she was a disgrace to this country by her first sergeant. While also being forced to walk in the snow to work while pregnant. She describes an incident when she was verbally abused by her first sergeant then arrested, handcuffed, and restrained to a bed in an ambulance. Inside the ambulance she was administered a shot in her left foot which was the most excruciating pain that she had ever felt in her life. Once at the hospital the nurses were livid. After a week or so being confined, a court appointed officer was dismayed after seeing that she was shackled in handcuffs while pregnant. She was neither a threat to herself nor towards anyone within her unit. The officer had her released before the day was over. d. She now teaches her three children to always be disciplined, verbally, physically, and mentally. To remain loyal, honor one's space, beliefs and thoughts and live life selfless because you never know what someone is going through on the back end. 3. The applicant enlisted in the Regular Army on 21 January 2009, for 3 years and 21 weeks. She was awarded military occupational specialty 42A (Human Resources Specialist). 4. The applicant is reported to have accepted nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on 15 September 2009 for disrespect of a noncommissioned officer (NCO), disobeying a direct order, and making false statements. A copy of the DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) is not of record. 5. The applicant was formally counseled on 14 occasions between 22 September and 30 November 2009, for various infractions including failure to go to her appointed place of duty, insubordination, disrespect towards an NCO, and missing appointments. 6. The applicant's immediate commander ordered the applicant to be placed in pre-trial confinement (PTC) on 2 December 2009. His justification for the confinement order was her pending court-martial and in his opinion that the applicant's "apparent criminal behavior had led the chain of command to believe that she no longer feels any obligation to respect the laws of the UCMJ or the state. These factors weigh against the likely success of any lesser forms of restraint amounting to anything adequate." The commander continued the confinement between 3 and 8 December 2009 stating the "confinement is necessary because it is foreseeable that the prisoner will continue to exhibit severe misconduct endangering the Soldiers around her." 7. Court-martial charges were preferred against the applicant on 9 December 2009, for violations of the UCMJ. Her DD Form 458 (Charge Sheet) shows she was charged with: * five specifications of being disrespectful in language towards a NCO, between on or about 22 September and 30 November 2009 * failure to go at the time prescribed to her appointed place of duty between on or about 6 November and 3 December 2009 * behave with disrespect toward her superior commissioned officer on or about 3 December 2009 * two specifications of failure to obey a lawful order on or about 10 October and 15 October 2009 8. On 10 December 2009, the applicant consulted with legal counsel and voluntarily requested, in writing, discharge under the provisions of Chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) in lieu of trial by court-martial. In this request, the applicant admitted guilt to the offense, or a lesser included offense. Further, the applicant indicated she understood that she could receive an under other than honorable conditions discharge and that the discharge would have a significant effect on her eligibility for veteran's benefits. The applicant did not submit a statement in her own behalf. 9. The unit commander and intermediate commander recommended approval of an under other than honorable conditions discharge. The senior intermediate commander recommended approval of an under honorable conditions (general) discharge. 10. The separation authority approved the applicant's request for discharge on 30 December 2009, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial, and directed the applicant receive an under honorable conditions(general) characterization of service. 11. The applicant was discharged on 22 January 2010. Her DD Form 214 shows she was discharged in the lowest enlisted grade and her service was characterized as under other than honorable conditions (UOTHC) with RE code "4". She was credited with 11 months and 25 days of net active service. 12. On 2 September 2011, the Army Discharge Review Board granted the applicant partial relief by upgrading her character of service. It was noted that after examining the applicant's record the Board found that someone in the discharge process erroneously entered her character of service as (UOTHC). In view of the error, the Board directed that an administrative change be made to show her service characterization as under honorable conditions (general), as approved by the separation authority. Except for the modification to the applicant's characterization of service, the Board determined that the reason for separation was both proper and equitable. 13. The applicant was charged due to the commission of an offense punishable under the UCMJ with a punitive discharge. After being charged, she consulted with counsel and requested discharge under the provisions of Army Regulation 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. 14. The available copy of the revised DD Form 214 does not include the Special Additional Information section listing the type of separation, character of service, separation authority, separation code, RE code, narrative reason for separation or dates of lost time. 15. Clemency guidance to the Boards for Correction of Military/Navy Records (BCM/NR) does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority to ensure each case will be assessed on its own merits. In determining whether to grant relief BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. This includes consideration of changes in policy, whereby a service member under the same circumstances today would reasonably be expected to receive a more favorable outcome. BOARD DISCUSSION: After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined relief was not warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. Based upon the short term of honorable service completed prior to a pattern of misconduct leading to the applicant’s separation, the Board concluded there was insufficient evidence of an error or injustice which would warrant a change to the applicant’s characterization of service and/or reentry (RE) code. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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. 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. REFERENCES: 1. Title 10, USC, 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 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. 2. Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program), in effect at the time, covered eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and U.S. Army Reserve. It stated that individuals would be assigned RE codes based on their service records or the reason for discharge prior to discharge or release from active duty. Table 3-1 included a list of Regular Army RE codes. * RE code "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 * RE code "2" applies to Soldiers separated prior to the effective date of this regulation and will not be used * RE code "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 * RE code "4" applies to Soldiers separated from their last period of service with a non-waivable disqualification 3. Army Regulation 635-5 (Separation Documents), governs preparation of the DD Form 214 and dictates that entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be entered exactly as listed in tables 2-2 or 2-3 of Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes). The regulation further stipulates that no deviation is authorized. The narrative reason specified by regulations for a discharge under this paragraph is "In Lieu of Trial by Court-Martial", and the appropriate separation code is "KFS." There is no provision for any other reason to be entered under this regulation. The SPD/RE Code Cross Reference Table included in the regulation establishes RE-4 as the proper code to assign members separated with this SPD code. 4. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. It provides: a. 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. b. 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. c. Chapter 10 of that regulation provided, in pertinent part, that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt. Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate. 5. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records, on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. a. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, Boards shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. b. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220001062 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1