BOARD DATE:	  22 March 2011

		DOCKET NUMBER:  AR20100021888 


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 his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show a reentry eligibility (RE) code which would allow him to reenter the military.

2.  The applicant states one isolated incident that was declared by the U.S. Army Criminal Investigation Command (USACIDC, also known as CID) to be unfounded caused him to get an unjust Article 15.  He chronicles the events following the alleged incident which include:  poor treatment by his superiors in that he was asked to sign a sworn statement that was untrue; was not permitted to take his medication as prescribed or eat a proper diet following removal of his gallbladder; working more hours than everyone else; and being required to work beyond his physical profile limitations. He adds that when he attempted to fight the Article 15 by pushing it to a court-martial he was forced into a chapter 10 discharge in lieu of court-martial.  He further states he needs his RE code changed from an RE-4 to permit him to enlist in the Army Reserve.

3.  The applicant provides photocopies of a CID investigation summary, CID Form 94 (Agent's Investigative Report), Request for Mental Health Consultation, six character statements, Letter of Acceptance Memorandum for Record, a DA Form 4187 (Personnel Action), operator's license, and multiple miscellaneous printouts. 




CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he enlisted in the Regular Army on 4 February 2005.  He completed initial entry training, was awarded the military occupational specialty of infantryman, and he was advanced to pay grade E-4.

2.  A CID report stated that an investigation determined the offense of rape did not occur as originally reported by CPT Sxxxxxx.  The report stated Private Pxxxxxxx was interviewed and that she stated the sexual acts were consensual.  The CID report further stated the referenced adult private consensual sexual misconduct was not within the normal purview of the CID and was referred to the commander for disposition.

3.  The applicant was charged with intent to deceive by making an official statement that he was unable to have sex with Private Pxxxxxxx which statement was totally false and was then known by the applicant to be so false; as a married man wrongfully having sexual intercourse with Private Pxxxxxxx, a woman not his wife; wrongfully committing an indecent act with Private Pxxxxxxx by touching her breasts; engaging in acts of sodomy; and having sexual intercourse with her in the presence of other people.

4.  On 4 December 2007, he voluntarily requested a discharge under the provisions of chapter 10, Army Regulation 635-200, in lieu of trial by court-martial.  He was advised of the basis of his contemplated trial by court-martial under circumstances which could lead to a bad conduct or dishonorable discharge, and the rights available to him.  He acknowledged he was making the request of his own free will and was not subjected to coercion with respect to his request for discharge and that he had been advised of the implications attached to his request.  He further acknowledged he understood that by requesting a discharge, he was admitting guilt to at least one of the specifications of the charge against him, or of a lesser included offense, which also authorized the imposition of a bad conduct or dishonorable discharge.

5.  He consulted with counsel prior to completing his request for discharge and was advised fully on the matter.  He acknowledged he understood if his discharge request was approved, he might be discharged under conditions other than honorable.  He acknowledged that as a result of the issuance of such a discharge he would be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the Department of Veterans Affairs, and that he might be deprived of his rights and benefits as a veteran under both Federal and State laws.  He was advised that he may submit any statements in his own behalf.

6.  On 10 December 2007, the separation authority directed his discharge under the provisions of chapter 10 of Army Regulation 635-200, in lieu of trial by court-martial, and that he receive an under other than honorable conditions discharge.

7.  On 7 January 2008, he was discharged accordingly.  The DD Form 214 issued to him shows he completed a total of 2 years, 11 months, and 4 days of active military service.  This form listed the narrative reason for separation as in lieu of trial by court-martial.  This form further contains the entry "KFS" in item 26 (Separation Code) and the entry "4" in item 27 (Reentry Code).

8.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes), table 2-3, states that SPD code KFS denotes in lieu of trial by court-martial.

9.  The U.S. Army Human Resources Command publishes a cross-reference table of SPD and RE codes.  This cross-reference table shows that SPD code KFS is assigned RE code 4.

10.  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 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army, U.S. Army Reserve, and Army National Guard.  Chapter 3 prescribes basic eligibility for prior-service applicants for enlistment and includes a list of Armed Forces RE codes.  Table 3-1 states that RE code 4 applies to a Soldier who is separated from the last period of service with a nonwaivable disqualification.

DISCUSSION AND CONCLUSIONS:

1.  While the applicant requested a change of his RE code, it is necessary to consider whether the reason for his discharge should be changed since the RE code is based on the reason for discharge.

2.  The CID found no evidence the offense of rape occurred as originally reported.  However, the applicant was charged with intent to deceive by making a false official statement; as a married man wrongfully having sexual intercourse with a woman not his wife; wrongfully committing an indecent act with this woman by touching her breasts; engaging in acts of sodomy; and having sexual intercourse with her in the presence of other people.  He admitted guilt to the charge or of a lesser included offense which authorized the imposition of a bad conduct or dishonorable discharge and he was discharged under the provisions of Chapter 10 for the good of the service in lieu of trial by court-martial.  As such, there is no merit to his contention that an unfounded isolated incident led to his Chapter 10 discharge.
 
3.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  As such, his reason for separation and separation code were administratively correct and in conformance with applicable regulations at the time of his separation.

4.  The SPD cross-reference table shows he was assigned an RE code of 4 based on the reason for discharge.  There is no evidence in the available record and he provided no evidence that shows irregularity in the assignment of his RE code.  He was disqualified from reenlistment based on misconduct and the disqualification is non-waivable under Army Regulations.  As such, he was properly assigned an RE code of 4.

5.  While a desire to enlist in the Army is commendable, this is not a basis for changing a properly assigned RE code.  As such, his RE code is correct and there is no reason to change it.

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)                                         AR20100021888



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ABCMR Record of Proceedings (cont)                                         AR20100021888



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