RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        28 November 2006
      DOCKET NUMBER:  AR20060006349


      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             |
|     |Mr. Dean L. Turnbull              |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. John T. Meixell               |     |Chairperson          |
|     |Ms. Susan A. Powers               |     |Member               |
|     |Mr. Dennis J. Phillips            |     |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 that his bad conduct discharge be upgraded to a
general discharge and his reentry eligibility (RE) code RE-4 be upgraded
to 
RE-1.

2.  The applicant states, in effect, that his bad conduct discharge and his
RE code of RE-4 is stopping him from reenlisting.  He states that since he
left the U.S. Army, he has changed his way of thinking and he has corrected
a great deal of issues that would better prepare him for a career in the
U.S. Army.  Also, he states that he has learned to turn negative situations
into positive situations by thinking before he acts.

3.  The applicant provides a copy of his DD Form 214 (Certificate of
Release or Discharge from Active Duty), and a written statement, dated 3
April 2006.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show that he enlisted in the U.S. Army
on  
12 October 2000.  He successfully completed basic combat training and
advanced individual training and was awarded the military occupational
specialty 11B1O (Infantryman).  The highest rank he attained while serving
on active duty was Private/pay grade E-2.

2.  On 31 August 2001, the applicant accepted nonjudicial punishment (NJP)
under Article 15, Uniform Code of Military Justice (UCMJ), for knowingly
and wrongfully consuming alcohol while under the lawful age of the
majority; for the intent to deceive a noncommissioned officer by making a
false statement to wit: that he was not drinking, or words to that effect
and was then known to be false; and for unlawfully striking a Soldier in
the face with his fist.  His punishment consisted of reduction to
private/pay grade E-1, forfeiture of $243.00 (suspended), to be
automatically remitted if not vacated before 28 February 2002, and 14 days
of extra duty and restriction to the limits of the company area.

3.  On 28 February 2002, the applicant was tried by a general court-martial
for three specifications for disrespect to a noncommissioned officer; one
specification for resisting apprehension; five specifications for assault;
four specifications for disorderly conduct; two specifications for
disobeying a lawful command; one specification for wrongful use of
provoking words; one



specification for assault; and one specification for disorderly conduct.
The applicant pleaded not guilty to all charges and specifications.

4.  The general court-martial found the applicant guilty on all charges and
specifications except for one specification of disrespect to a
noncommissioned officer, two specifications of assault, and one
specification of disobeying a lawful command.  His sentence consisted of
forfeiture of all pay and allowances, confinement for three years, and a
bad conduct discharge.

5.  The record does not show when the Army Court of Criminal Appeals (ACCA)
affirmed the findings and sentence in the case.  However, the decision by
the Court of Appeals for the Armed Forces to deny the applicant's petition
for a grant of review, dated 23 March 2004, conclusively shows that the
ACCA review affirming the applicant's finding of guilt and sentence was
conducted.

6.  Headquarters, U.S. Army Field Artillery Center and Fort Sill, Fort
Sill, Oklahoma, General Court-Martial Order Number 93, dated 29 April 2004,
shows that the applicant's sentence was promulgated on 25 June 2002, and
subsequently affirmed.  Also, the applicant's bad conduct discharge was
ordered to be executed.

7.  On 21 January 2005, the applicant was discharged as a result of a court-
martial.  He had completed 1 year, 2 months, and 18 days of active service.

8.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 3, Section IV, establishes
policy and procedures for separating members with a dishonorable or bad
conduct discharge.  It provides that a Soldier will be given a bad conduct
discharge pursuant only to an approved sentence of a general or special
court-martial; and that the appellate review must be completed and the
affirmed sentence ordered duly executed.

9.  Court-martial convictions stand as adjudged or as 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.

10.  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 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 Regular Army RE codes.

11.  Table 3-1 (U.S. Army reentry eligibility codes) of Army Regulation  
601-210 states that RE-1 applies to persons who are considered qualified
for reentry or continuous service at time of separation.  The code RE-4
applies to persons separated from last period of service with a nonwaivable
disqualification. Included in this category are persons who are discharged
under the provisions of Army Regulation 635-200, Chapter 3.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that his bad conduct discharge be upgraded to a
general discharge and his RE code of RE-4 be upgraded to RE-1.

2.  Although no evidence was submitted to substantiate the applicant’s
contentions, the Board accepts that the applicant had made some bad
decisions while he was on active duty, has since learned to turn negative
thinking into positive thinking, and has managed to find a new career.

3.  However, the type of discharge directed and the reasons for separation
were appropriate considering all the facts of the case.  The records
contain no indication of procedural or other errors that would tend to
jeopardize his rights.

4.  Any relief by this Board regarding the finality of a court-martial
conviction is prohibited by law.  The Board is only empowered to change a
discharge if clemency is determined to be appropriate to moderate the
severity of the sentence imposed.

5.  The applicant’s acknowledgement of problems with making wrong decisions
and his post-service conduct are insufficiently mitigating to warrant
clemency in view of his violent misconduct while on active duty.

6.  The RE code of RE-4 is the proper code to assign members separating
under the provisions of Army Regulation 635-200, chapter 3 by reason of
courts-martial.  Therefore, the applicant is not entitled to correction of
his records to upgrade his RE-4 to RE-1.

7.  In order to justify correction of a military record the applicant must
satisfactorily show, or it must otherwise satisfactorily appear, that the
record is in error or unjust.  The applicant has failed to submit
sufficient evidence that would satisfy this requirement or to show clemency
is warranted.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___jtm___  ___sap__  ____djp_  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.





                                  _________John T. Meixell_________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060006349                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061128                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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