RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        9 January 2007
      DOCKET NUMBER:  AR20060006548


      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. James E. Anderholm            |     |Chairperson          |
|     |Mr. Jerome L. Pionk               |     |Member               |
|     |Mr. Scott W. Faught               |     |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 reentry (RE) code of RE-4 be change on
his DD Form 214 (Certificate of Release or Discharge from Active Duty) so
that he may become eligible for reenlistment.  Since the applicant
ultimately seeks to reenlist, the ABCMR will treat his request, in
addition, as a plea for clemency in the form of an upgrade of his bad
conduct discharge and a request for reinstatement onto active duty.

2.  The applicant states, in effect, that due to the circumstances of his
situation and the punishment his accomplice received, he believes his
punishment was extreme and unfair.

3.  The applicant provides:

      a.  a copy of his DD Form 214;

      b.  a copy of a letter explaining the events in his case;

      c.  a copy of his statement concerning the case;

      d.  a copy of United States Army Courts of Criminal Appeals decision;
and

      e.  a copy of a summary attesting he received unfair punishment.

CONSIDERATION OF EVIDENCE:

1.  The applicant entered active duty on 26 April 2001.  He completed basic
combat training and advanced individual and was awarded the military
occupational specialty 11B1O (Infantryman).

2.  On 9 April 2003, the applicant was convicted pursuant to his pleas by
General Court-Martial for a violation of Article 121, Uniform Code of
Military Justice (UCMJ) in that he stole a coat, debit/credit cards, and
cash of a combined value greater than $500.00, and violation of Article
122, UCMJ in that, by means of force and violence to steal from a person
against his will, a silver necklace, a knife, and cash of a combined value
of $150.00.

3.  The sentence imposed consisted of a reduction to private/pay grade E-1,
confinement for 13 months, and a Bad Conduct Discharge (BCD).

4.  In an appeal to the U.S. Army Court of Criminal Appeals, the
applicant’s defense counsel emphasized that the crime the applicant
committed was an aberration, that he took full responsibility for his
actions, and that he fully cooperated with the investigation into his
crimes.  This cooperation included immediately confessing his involvement
in the larceny and robbery, waiving his right to a pretrial Article 32
investigation, and pleading guilty to all of the charges and specifications
referred against him without benefit of pretrial agreement.  Counsel added
that the applicant agreed to continue with his guilty plea to the robbery
charge after it became apparent that the government did not have sufficient
evidence to convict him of this offense as a result of the witnesses'
failure to appear at trial.  Counsel then contrasted the applicant’s
accomplice's behavior which included his exercising his right to an Article
32 investigation.  Counsel also points out that the applicant’s accomplice
went AWOL before his trial and was found not guilty of robbery.  After
considering counsel’s argument and the Record of Trial, on 27 January 2005
the U.S. Army Court of Criminal Appeals affirmed the court-martial’s
findings and sentence.

5.  The applicant acknowledged the affirmation of the court-martial
findings and sentence and his right to appeal to the U.S. Court of Appeals
for the Armed Forces.

6.  On 14 February 2005, the applicant filed a petition for grant of review
with the United States Court of Appeals for the Armed Forces.

7.  On 8 June 2005, the United States Army Court of Appeals for the Armed
Forces denied the applicant's petition for review.

8.  On 23 June 2005, the convening authority ordered the BCD executed.  On
 
19 August 2005, the applicant was discharged and issued a BCD.  He had  
3 years, 6 months and 1 day of creditable service.  He had a total of 288
days of time lost.

9.  In the applicant's letter of explanation concerning his offense, he
states that he was rightfully convicted along with his friend for the two
crimes they committed.  He states, in effect, that because of his alcohol
consumption and choice of friends he made some poor decisions.

10.  He states, in effect, that his accomplice was equally responsibly for
the crimes committed, however, he did not receive like punishment.

11.  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.
Questions concerning the finality of appellate review should be referred to
the servicing staff judge advocate.

12.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment
Program), covers eligibility criteria, policies, procedures for enlistment,
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 Regular Army RE codes.

13.  Table 3-1 (U.S. Army reentry eligibility codes), of Army Regulation  
601-210 states that RE-4 applies to persons separated from last period of
service with a non-waivable disqualification.

14.  Army Regulation 601-210, paragraph 3-24a, states in pertinent part,
that prior service personnel will be advised that RE codes may be changed
only if they are determined to be administratively incorrect.  Applicants
who have correct RE codes will be processed for a waiver at their request
if otherwise qualified and a waiver is authorized.

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 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.  The Manual for Courts-Martial (MCM), Table of Maximum Punishments,
shows the maximum punishment for larceny of property other than military
property of a value of more than $100.00 or any motor vehicle, aircraft,
vessel, firearm, or explosive (Article 121).  The authorized punishment for
this offense includes a Dishonorable Discharge or a Bad Conduct Discharge
and confinement for five years.

17.  The punishment for robbery (Article 122) includes a Dishonorable
Discharge or a Bad Conduct Discharge and confinement for 10 years.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he did not receive a fair trial because
his accomplice was given a lesser sentence is noted.  However, this
disparity can be easily explained by the fact that the applicant's
accomplice was acquitted of the robbery charge and was therefore sentenced
for a lesser offense.  Also, the applicant was senior in rank to his
accomplice.  This too likely was considered by the judge in rendering a
sentence.

2.  While the fact that the applicant took responsibility for his crimes is
commendable, it does not negate the fact that he committed serious
offenses.  When he was found guilty for those offenses the court-martial
sentenced him to punishment which was appropriate for the nature of the
offenses.  There is no error or injustice in that scenario.

3.  It is noted that the applicant’s court-martial sentenced him to far
less punishment than the maximum punishment allowable under the Table for
Maximum Punishment in the MCM.

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.  The applicant's contentions relate to evidentiary and procedural
matters which were finally and conclusively adjudicated in the court-
martial appellate process, and establish no basis for clemency.

6.  The applicant’s offenses warranted a BCD and he has provided no valid
reason for changing an appropriately assigned RE code.  The type of
discharge directed and the reasons therefore were appropriate considering
all the facts of the case.

7.  Based on the nature of the applicant's request, the Board also
considered upgrading the applicant's discharge and assigning a
corresponding RE Code that would allow reenlistment or directing that the
Army reinstate the applicant.  In light of the entire record and the
applicant's offenses, the Board determined that neither an upgrade of the
applicant's BCD or reinstatement of the applicant is appropriate at this
time.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___jea___  ___jlp___  ___swf__  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.  Further, the board determined that
the record does not warrant an upgrade of the applicant's BCD or his
reinstatement to active duty.




                                  _________James E. Anderholm______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060006548                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20070109                                |
|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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