MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 5 September 2002
         DOCKET NUMBER: AR2002074997

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Ms. Wanda L. Waller		Analyst

The following members, a quorum, were present:

Ms. Celia L. Adolphi		Chairperson
Mr. Melvin H. Meyer		Member
Mr. John T. Meixell		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: In effect, that clemency be granted in the form of a discharge upgrade. He also requests that his reentry (RE) code be upgraded.

APPLICANT STATES: In effect, that his first term of service was completed before these proceedings were accounted for. Therefore, he believes that his Department of Veterans Affairs (DVA) benefits and the Montgomery G.I. Bill should be active due to his first tenure of service. The applicant did not provide any supporting documents in support of his claim.

EVIDENCE OF RECORD: The applicant's military records show:

The applicant enlisted on 24 September 1990 for a period of 2 years and
27 weeks. He successfully completed basic training and advanced individual training in military occupational specialty 67R (AH-64 attack helicopter repairer). On 2 July 1992, he extended his enlistment for a period of 13 months. On
10 February 1994, the applicant was honorably discharged. On 11 February 1994, he reenlisted for a period of 2 years.

On 31 August 1994, the applicant was convicted by a general court-martial of assault with intent to commit murder and assault with a dangerous weapon. He was sentenced to a bad conduct discharge, forfeiture of $532 pay per month for 36 months and reduction to E-1. On 8 February 1995, the convening authority approved the sentence.

On 14 July 1995, the United States Army Court of Criminal Appeals affirmed the findings of guilty and the sentence. The bad conduct discharge was ordered executed on 6 February 1996.

Accordingly, the applicant was discharged with a bad conduct discharge on
7 March 1996 under the provisions of Army Regulation 635-200, chapter 3, as a result of court-martial. He had served 3 years, 10 months and 18 days of total active service with 554 days lost time due to confinement. He was issued an RE code of RE-4.

Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel. Paragraph 3-11 of this regulation states 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.





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 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.

Army Regulation 635-200, paragraph 3-7, 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 (emphasis added), 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.

Army Regulation 635-200, paragraph 3-7, 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.

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 USAR. Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment. That chapter includes a list of armed forces RE codes.

Paragraph 3-27 of Army Regulation 601-210 provides that RE Codes may be changed only if they are determined to be administratively incorrect.

RE-4 applies to persons not qualified for continued Army service by virtue of being separated from the service with a nonwaivable disqualification such as individuals with a bad conduct discharge or dishonorable discharge.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:




1. The Board considered the applicant’s contention pertaining to DVA benefits and the Montgomery GI Bill. However, the Board does not grant relief solely for the purpose of obtaining medical or educational benefits.

2. The Board noted that the applicant had served 3 years, 10 months and
18 days of total active service at the time of his discharge.

3. The Board also reviewed the applicant’s record of service which included one general court-martial conviction for assault with intent to commit murder and assault with a dangerous weapon and determined that his quality of service did not meet the standards of acceptable conduct and performance for Army personnel. Therefore, the Board determined that clemency in the form of an honorable discharge was not warranted in this case.

4. The Board also determined that the seriousness of the offenses for which the applicant received a general court-martial conviction were too serious to grant clemency in the form of a general discharge.

5. The applicant’s administrative separation was accomplished in compliance with applicable regulations.

6. The applicant has failed to show through the evidence submitted with his application or the evidence of record that the actions taken in his case were in error or unjust.

7. The RE code used in the applicant’s case is correct and was applied in accordance with the applicable regulation. Therefore, there is no basis for changing the applicant’s RE code.

8. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.

9. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

CLA____ MHM_____ JTM_____ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2002074997
SUFFIX
RECON
DATE BOARDED	20020905
TYPE OF DISCHARGE	(BCD)
DATE OF DISCHARGE	19960307
DISCHARGE AUTHORITY	AR 635-200 Chapter 3
DISCHARGE REASON	Result of court-martial
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	110.0200
2.	100.0300
3.
4.
5.
6.