IN THE CASE OF:	   

		BOARD DATE:	        7 October 2008

		DOCKET NUMBER:  AR20080011460 


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 reconsideration of an earlier request that her reentry (RE) code be changed.

2.  The applicant states, in effect, that she informed the Criminal Investigation Division (CID) investigator that she had an attorney, that the investigator told her she did not need an attorney, and that she was interrogated by the CID investigator without her attorney present.  She indicates that due to stress and depression she asked the investigator what she needed to do to make this end and he handed her a blank statement and told her to make her statement mirror the accuser’s statement.  She states that she was not read her rights until after she changed her statement to end the whole matter.  She further states that if she had known she was going to have indecent acts on her civilian criminal history she would have never changed her statement.  She also states that she believes that the individuals involved put something in her drink on the night in question. 

3.  The applicant provides no additional evidence in support of her application.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080007862, on 24 June 2008.

2.  The applicant’s new arguments will be considered by the Board.

3.  The applicant enlisted on 18 April 2003 and trained as a multichannel transmission systems operator.  On 6 May 2005, charges were preferred against the applicant for disobeying a lawful command (not to have any contact with a staff sergeant) on diverse occasions between on or about 1 March 2005 and on or about 1 April 2005; violating a lawful general regulation (wrongfully having a personal and sexual relationship with a superior noncommissioned officer) between 1 November 2004 and 11 February 2005; making a false official statement (that she had been raped by four Soldiers) on 26 June 2004; wrongfully having sexual intercourse with a married noncommissioned officer not her husband between 1 November 2004 and 11 February 2005; and wrongfully committing an indecent act with four Soldiers by twice having sexual intercourse with two Soldiers simultaneously on 26 August 2003.

4.  The applicant’s voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial is not available.  However, the separation authority approved the applicant’s request for discharge in lieu of trial by court-martial on 13 June 2005.  She was discharged under other than honorable conditions on 23 June 2005 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  She had served 2 years, 2 months, and 6 days of creditable active service.

5.  Item 25 (Separation Authority) on the applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the entry, "AR [Army Regulation] 635-200, CHAP [chapter] 10."  Item 26 (Separation Code) on her DD Form 214 shows the entry, "KFS."  Item 27 (Reentry Code) on her DD Form 214 shows the entry, "4."  Item 28 (Narrative Reason for Separation) on her DD Form 214 shows the entry, "IN LIEU OF TRIAL BY COURT-MARTIAL."  

6.  On 1 June 2007, the Army Discharge Review Board (ADRB) determined that the applicant’s characterization of service was too harsh, and as a result it was inequitable.  Therefore, the ADRB upgraded the applicant’s discharge to a general discharge.  However, the applicant’s separation authority, separation code, reentry code, and narrative reason for separation remained unchanged.

7.  Army Regulation 635-5-1 (Separation Program Designator Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons.  The regulation states the reason for discharge based on separation code “KFS” is “In lieu of trial by court-martial” and the regulatory authority is Army Regulation 635-200, 
chapter 10.  
8.  Pertinent Army regulations provide 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 covers eligibility criteria, 
policies, and procedures for enlistment processing into the Regular Army and the U.S. Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of armed forces RE codes.

9.  RE-4 applies to persons separated from their last period of service with a non-waivable disqualification.  

10.  RE-3 applies to persons who are not qualified for continued Army service, but the disqualification is waivable.  

11.  RE-1 applies to persons completing an initial term of active service who were fully qualified when last separated.

12.  The Separation Program Designator Code/Reentry Code Cross Reference Table, dated 31 March 2003, shows that Soldiers given an SPD [Separation Program Designator] of "KFS” will be given an RE code of 4.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions were noted.  Although she mentions “the night in question,” several charges with multiple dates were preferred against her.  Her contentions relate to evidentiary and procedural matters that could have been addressed and conclusively adjudicated in a court-martial appellate process.  However, the applicant voluntarily requested discharge in lieu of trial by court-martial.

2.  The applicant’s RE code was administratively correct and in conformance with applicable regulations at the time of her separation.  The ADRB upgrade is an insufficient basis on which to change it.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___XX_____  ___XX_____  ___XX_____  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 to amend the decision of the ABCMR set forth in Docket Number AR20080007862, dated 24 June 2008.



      ________XXXX______________
               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)                                         AR20080011460



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ABCMR Record of Proceedings (cont)                                         AR20080011460



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