RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:       29 September 2005
      DOCKET NUMBER:  AR20050000608


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

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mrs. Victoria A. Donaldson        |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Lester Echols                 |     |Chairperson          |
|     |Mr. Paul M. Smith                 |     |Member               |
|     |Mr. Leonard G. Hassell            |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his DD Form 214 (Certificate of
Release or Discharge from Active Duty) be corrected by changing his
character of service to general, his re-entry code (RE code) to RE-3, his
separation code to JKM (Misconduct), and his narrative reason to
misconduct.

2.  The applicant states that his chain of command was aware of the
difficulties he was having and chose to ignore his numerous requests for
assistance.

3.  The applicant provides several copies of awards certificates, copies of
his record of trial, and several reference letters.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 6 February 1989.  The application submitted in this case
is dated 4 January 2005.

2.  Title 10, U.S. Code, 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 allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant enlisted in the United States Army on 13 November 1984
for a period of three years.  He completed training and was awarded the
military occupational specialty of 67T (Tactical Transportation Helicopter
Repairer).  He was advanced to specialist/pay grade E-4.

4.  On 10 July 1987, the applicant accepted nonjudicial punishment (NJP)
under the provisions of Article 15 of the Uniform Code of Military Justice
(UCMJ), for causing a breach of the peace by threatening two Soldiers with
a knife.  His punishment for this offense included forfeiture of $408.00
(suspended for 90 days), 45 days of extra duty, restriction for 45 days,
and reduction to the grade of E-3, suspended for 90 days.



5.  On 8 September 1987, the applicant was admitted to the 43rd Mobile
Surgical Hospital at Camp Humphrey for injuries sustained as a result of a
UH-60 crash which occurred on 7 September 1987.  Records show the applicant
wrongfully started the aircraft and flew it in an attempt to commit
suicide.

6.  Records also show that a line of duty investigation was conducted and
the applicant's injuries were determined to be not in the line of duty-due
to own misconduct.

7.  On 20 November 1987, the applicant pled guilty to and was convicted by
a General Court-Martial of the following offenses:  stealing a military
aircraft of a value of more than $100.00 and willfully destroying an
aircraft.  The resultant sentence was reduction to private/ pay grade E-1,
a bad conduct discharge, a fine of $4,600,000, and confinement for 18
months.  The convening authority approved the sentence on 4 March 1988 with
the exception of the applicant's bad conduct discharge ordered the sentence
to be executed.

8.  The applicant's records contain a Memorandum Opinion from the United
States Army Court of Military Review.  This opinion shows the Court of
Review affirmed the findings of guilty and the sentence with the exception
of the fine in the amount of $4,600,000.

9.  The applicant was transferred to the United States Army Correctional
Activity at Fort Riley, Kansas, to serve his confinement.

10.  Records show the applicant requested and was granted special clemency
in the form of a reduction in confinement by the Commander of the United
States Army Correctional Activity.

11.  General Court Martial Order Number 141, dated 25 January 1989,
affirmed the sentence as modified by the United States Army Court of
Military Review and ordered the bad conduct discharge be executed.

12.  The applicant's DD Form 214 (Certificate of Release or Discharge from
Active Duty) shows that he was discharged as a result of court-martial on
6 February 1989, under the provisions of chapter 3 of Army Regulation 635-
200 (Personnel Separations), with the separation code JJD and the RE-code
4.  This form further shows the applicant's character of service as bad
conduct.  Army Regulation 635-5-1 shows the separation code JJD indicates
separation of enlisted personnel as a result of court-martial.

13.  The applicant is not eligible to apply to the Army Discharge Review
Board for upgrade of his discharge.

14.  The applicant provided four letters of support which essentially state
the applicant is dependable, friendly, and always conducts himself in a
professional manner.

15.  There is no evidence in the applicant's military medical records which
shows he was diagnosed with and/or treated for any type of mental illness
or condition.

16.  There is no evidence in the applicant's service personnel records
which shows he requested and/or received assistance from his chain of
command or any other military personnel regarding any problems.

17.  Army Regulation 635-5-1 (Separation Program Designators) provides the
specific authorities (regulatory or directive), reasons for separating
Soldiers from active duty, and the SPD codes to be entered on the DD Form
214.  It states, in pertinent part, that the SPD code of JJD is the
appropriate code to assign to Soldiers who separated under the provisions
of chapter 3 of Army Regulation 635-200 as a result of court-martial.  The
SPD/RE Code Cross Reference Table included in the regulation stipulates
that the RE code assignment will be based on the Department of the Army
directive authorizing separation.

18.  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
(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.  Chapter 3 of that regulation
prescribes basic eligibility for prior service applicants for enlistment.
That chapter includes a list of armed forces RE codes, including RA RE
codes.  RE-4 applies to persons who are "definitely not eligible for
reenlistment."  This disqualification is not waivable.

19.  Army Regulation 635-204 (Personnel Separations) provided for
separation of enlisted personnel with a dishonorable discharge pursuant to
an approved sentence of a general court-martial.  This regulation also
provided for separation of enlisted personnel with a bad conduct discharge
based on an approved sentence of a general court-martial or a special court-
martial imposing a bad conduct discharge.


20.  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.

21.  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.

22.  Army Regulation 635-200 (Personnel Separations), 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.

23.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his DD Form 214 should be corrected to show his
character of service is under honorable conditions, his RE code is RE-3,
his separation code is JKM (Misconduct), and his narrative reason is
misconduct.

2.  The applicant's records clearly show that he intentionally stole a
military aircraft and that he intentionally crashed the military aircraft
for the purpose of committing suicide.  For these offenses, the applicant
was tried and convicted by a general court-martial in January 1989.
3.  The applicant has not provided sufficient evidence and his records do
not contain any evidence which supports his contentions.

4.  Trial by court-martial was warranted by the gravity of the offenses
charged.  Conviction and discharge were effected in accordance with
applicable law and regulations, and the discharge appropriately
characterizes the misconduct for which the applicant was convicted.

5.  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.

6.  After review of the applicant’s entire record of service, it was not
considered sufficiently meritorious to warrant clemency in this case.
Given the seriousness of the offenses for which he was convicted, it is
clear that his service was not satisfactory, thus did not meet the
criterion for discharge under honorable conditions.  Therefore, the
applicant's character of service, RE code, separation code, and his
narrative reason are appropriately shown on his separation document and
there is no basis to grant the relief requested.

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 6 February 1989 the effective date of
his discharge.  Therefore, the time for the applicant to file a request for
correction of any error or injustice expired on 5 February 1992.  However,
the applicant did not file within the 3-year statute of limitations and has
not provided a compelling explanation or evidence to show that it would be
in the interest of justice to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

_LE_____  __LH___  __PSM___  DENY APPLICATION





BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




                                          __Lester Echols____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050000608                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/09/29                              |
|TYPE OF DISCHARGE       |BCD                                     |
|DATE OF DISCHARGE       |19890206                                |
|DISCHARGE AUTHORITY     |AR 635-200. . . . .                     |
|DISCHARGE REASON        |Court-martial                           |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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