IN THE CASE OF: BOARD DATE: 10 July 2008 DOCKET NUMBER: AR20080006068 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 his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected as follows: a. correct Item 24 (Character of Service) to show "Under Other Than Honorable Conditions" instead of a "Bad Conduct Discharge"; b. change Item 27 [Reentry Code (RE Code)] from "RE-4" to "RE-3"; and c. remove lost time from Item 29 (Dates of Time Lost During This Period). 2. The applicant states that we all make mistakes and that he would like a second chance to prove himself as a Soldier by reentering the Army. 3. The applicant provides the following additional documentary evidence in support of his application: a. DD Form 214, dated 31 August 2007. b. DA Form 3595-R (Record Fire Scorecard), dated 19 April 2002. c. DA Form 705 (Army Physical Fitness Test Scorecard), dated 22 March 2002 and 13 April 2006. d. Statement of Service, dated 20 July 2006. e. Enlisted Record Brief (ERB), dated 2 October 2007. f. Memorandums of Support, dated 25 May 2006 and 30 May 2006. g. General Court-Martial Order Number 43, dated 11 August 2006. CONSIDERATION OF EVIDENCE: 1. The applicant's records show that he enlisted in the Regular Army for a period of 4 years on 19 January 2000. He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11B (Infantryman). His records further show that he executed a 3-year reenlistment in the Regular Army on 23 January 2003. The highest rank/grade he attained during his military service was specialist (SPC)/E-4. 2. The applicant's awards and decorations include the Army Achievement Medal (2nd Award), the Army Good Conduct Medal, the National Defense Service Medal, the Global War on Terrorism Service Medal, and the Parachutist Badge. His record does not reveal any significant acts of valor during his military service. 3. On 23 March 2004, while assigned to C Company, 1st Battalion, 15th Infantry, Fort Benning, Georgia, the applicant departed his unit in an absent without leave (AWOL) status. He was subsequently dropped from the Army rolls on 23 April 2004. 4. On 5 May 2004, Court-Martial charges were preferred against the applicant for one specification of desertion from on or about 24 March 2004 through on or about an undetermined date. 5. On 17 February 2006, the applicant was apprehended by civil authorities in Desoto, Florida, and was returned to military control on the same date. 6. On 30 May 2006, the applicant pled guilty at a General Court-Martial to one specification of being AWOL during the period on or about 24 March 2004 through on or about 17 February 2006. The Court sentenced him to reduction to the rank/grade of private (PVT)/E-1, confinement for 14 months, and a bad conduct discharge. 7. On 11 August 2006, the convening authority approved only so much of the sentence as provided for a reduction to PVT/E-1, confinement for 7 months, and a bad conduct discharge, and except for the bad conduct discharge, he ordered the sentence executed. Furthermore, the convening authority waived the automatic forfeiture of $1,500.00 pay and allowances per month, as required by Article 58b of the Uniform Code of military Justice (UCMJ), effective 12 June 2006 until 11 December 2006, with direction that these funds be paid to the applicant's spouse, and credited the applicant with 10 days confinement credit. 8. On an unknown date in 2007, the U.S. Army Court of Military Review affirmed the approved the findings of guilty and the sentence. 9. Headquarters, U.S. Army Field Artillery Center and Fort Sill, Fort Sill, Oklahoma, General Court-Martial Order Number 116, dated 4 May 2007, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the Bad Conduct Discharge executed. 10. The applicant was discharged from the Army on 31 August 2007. His DD Form 214 shows he was discharged under the provisions of chapter 3, Army Regulation 635-200 (Personnel Separations), as a result of court-martial. This form further shows the applicant completed 5 years, 3 months, and 6 days of creditable military service. Item 24 (Character of Service) of this form shows the entry "Bad Conduct"; Item 27 (Reentry Code) shows the entry "4"; and Item 29 (Dates of Time Lost During This Period) shows the entry " Under USC 972: 20040324-20060217 and 20060530-20061111." 11. Army Regulation 635-200, 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. Whenever there is doubt, it is to be resolved in favor of the individual. 12. Army Regulation 635-200, 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. 13. Army Regulation 635-200, paragraph 3-7c, provides that an under other than honorable discharge is an administrative separation from the Service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, homosexual conduct, security reasons, or in lieu of trial by court martial when the reason for separation is based upon a pattern of behavior that constitutes a significant departure from the conduct expected of soldiers of the Army or when the reason for separation is based upon one or more acts or omissions that constitutes a significant departure from the conduct expected of Soldiers of the Army, such as the use of force or violence to produce serious bodily injury or death, abuse of a position of trust, disregard by a superior of customary superior-subordinate relationships, acts or omissions that endanger the security of the United States or the health and welfare of other soldiers of the Army, or deliberate acts or omissions that seriously endanger the health and safety of other persons. 14. Army Regulation 635-200, paragraph 3-11 provides that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed. 15. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, United States Code, section 1552, the authority under which this Board acts, the Army Board for Correction of Military Records (ABCMR) is not empowered to set aside a conviction. Rather, it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed. 16. Army Regulation 635-200 states, in pertinent part, 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 (Regular Army and Army Reserve Enlistment Program), covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the US Army Reserve. Table 3-1 included a list of the Regular Army Reenlistment Eligibility Codes (RE codes). An RE–1, applies to Soldiers completing their term of active service who are considered qualified to reenter the Army; they are qualified for enlistment if all other criteria are met. An RE-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. An RE-4 applies to Soldiers separated from last period of service with a nonwaivable disqualification. 17. Army Regulation 635-5-1 (Separation Program Designator Codes) states that the Separation Program Designator (SPD) codes are three-character alphabetic combinations, which identify reasons for, and types of separation from active duty. The primary purpose of SPD codes is to provide statistical accounting of reasons for separation. They are intended exclusively for the internal use of DOD and the military services to assist in the collection and analysis of separation data. The "JJD" Separation code is the correct code for Soldiers separating by reason of a court-martial sentence. 18. Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214. The purpose of the separation document is to provide the individual with documentary evidence of their military service. It is important that information entered on the form should be complete and accurate. The DD Form 214 is a summary of a Soldier's most recent period of continuous active duty to include attendance at basic and advanced training. The DD Form 214 will be prepared for all personnel at the time of their retirement, discharge, or release from active duty. Chapter 2 covers the preparation of the DD Form 214: a. Item 24, shows the Character of service. The correct entry in this item is vital since it affects a Soldier’s eligibility for post-service benefits. The characterization or description of service is determined by directives authorizing separation. For a Soldier being released from custody and control of the Army due to a void or voided enlistment, enter “hyphens.” Otherwise, the entry must be one of the following: Honorable, Under Honorable Conditions (General), Under Other than Honorable Conditions, Bad Conduct, Dishonorable, or Uncharacterized; b. Item 27 shows the RE Code. RE codes are not applicable to officers, USMA cadets who fail to graduate or enter USMA from active duty status, or to Reserve Component Soldiers being separated for other than cause; and c. Item 29, shows the dates of times lost during the period of the DD Form 214. Verify that time lost as indicated by Defense Finance and Accounting Service agencies has been subtracted from Net Active Service This Period (block 12c) if the lost time was not “made good.” If the ETS was adjusted as a result of lost time and the Soldier served until ETS, the lost time was “made good.” Lost time under 10 USC 972 is not creditable service for pay, retirement, or veteran’s benefits. However, the Army preserves a record (even after time is made up) to explain which service between date of entry on active duty (block 12a) and separation date (block 12b) is creditable service. Time lost after ETS is non–chargeable time under 10 USC 972, but it must also be reported to ensure it is not counted in computation of total creditable service for benefits. For enlisted Soldiers, show inclusive periods of time lost to be made good under Title 10 USC 972, and periods of non–chargeable time after ETS. DISCUSSION AND CONCLUSIONS: 1. The applicant contends that his discharge and RE-4 should be upgraded, and his lost time should be removed. 2. With respect to the applicant's character of service, the evidence of record shows that he was convicted by a General Court-Martial, which was warranted by the gravity of the offense charged. Conviction and discharge were effected in accordance with applicable laws and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted. By law, any redress by this Board of the finality of a Court-Martial conviction is prohibited. The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed. 3. The applicant was given a bad conduct discharge pursuant to an approved sentence of a general court-martial. The appellate review was completed and the affirmed sentence ordered duly executed. All requirements of law and regulation were met and the rights of the applicant were fully protected. In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant did not submit evidence that would satisfy this requirement. Therefore, he is not entitled to an upgrade of his discharge. 4. With respect to the applicant's RE code, the evidence of record shows that at the time of his discharge, the applicant received a separation code of JJD and an RE code of 4. The SPD code of JJD and RE code of 4 are the appropriate codes for the applicant based on his discharge as a result of Court-Martial with a Bad Conduct Discharge and both codes are consistent with the reason and authority for his discharge. In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant did not submit evidence that would satisfy this requirement. Therefore, he is not entitled to an upgrade of RE code. 5. With respect to his lost time, the applicant's records show that he was AWOL from 24 March 2004 to 17 February 2006 and that he was confined from 30 May 2006 to 11 November 2006. This is time lost that has not been made good. There is no provision in Army Regulation 635-5 to remove time lost based on an applicant's likes or dislikes. Therefore, the entry in Item 29 is correct. 6. The Army Board for Correction of Military Records (ABCMR) does not correct records solely for the purpose of establishing eligibility for other programs or benefits. In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record in error or unjust. The applicant did not submit evidence that would satisfy that requirement. Therefore, the applicant is not entitled to any relief. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __xxx___ __xxx___ __xxx___ 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. XXX _______________________ 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) AR20080006068 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20080006068 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1