RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  22 March 2007
	DOCKET NUMBER:  AR20060010810 


	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. Gerard W. Schwartz

 Acting Director

Ms. Stephanie Thompkins

Analyst


The following members, a quorum, were present:


Ms. Linda D. Simmons

Chairperson

Mr. John T. Meixell

Member

Mr. Roland S. Venable

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 Reenlistment (RE) Code be changed to RE-3 and that his bad conduct discharge be upgraded to a general discharge so that he can reenlist in the military.

2.  The applicant states, in effect, he wants to have a better record under his name and should he choose to join the military again in the future, he will have that option.  He also states that an upgrade to a general discharge would be great, if possible.  His bad conduct discharge has a RE-4 Code and he was hoping to get it changed to a RE-3 Code so he can try to return to the military.  He does not believe his record is in error, just unjust for what he went through in Iraq for his country.  He received a Purple Heart from battle and has 21 confirmed kills, with no telling how many more.  He may have made a mistake but he has served his country very well.  

3.  The applicant provides copies of his DD Form 293 (Application for the Review of Discharge from the Armed Forces of a United States), his recommendation for award of the Purple Heart, his exceptional support certificate, and three character reference letters, in support of his application.  

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he enlisted in the United States Army Reserve (USAR), in pay grade E-1, on 29 June 1998.  He was honorably discharged from the USAR, in pay grade E-3, on 14 August 2002.  

2.  The applicant enlisted in the Regular Army, in pay grade E-4, on 15 August 2002, for 3 years.

3.  The applicant submits documentation, dated 15 October 2003, wherein his commander recommended him for award of the Purple Heart.  The recommendation stated that the applicant had distinguished himself by helping establish the company perimeter and ensuring daily mission success in a field environment.

4.  On 22 January 2004, the applicant was convicted by general court-martial, of willfully damaging, by pouring sand in the engine block of an M818 tractor truck, military property of the US, the amount of said damage being in the sum of about $15,066, on or about 31 May 2003.  He was also convicted of wrongfully and unlawfully making, under lawful oath, a false statement, on or about 27 July 2003, and wrongfully and unlawfully making, under lawful oath, a false statement, on or about 31 July 2003.  The court sentenced the applicant to confinement for 30 months and to be discharged from the service with a bad conduct discharge.

5.  On 15 July 2004, the convening authority approved the sentence as adjudged.

6.  On 3 August 2004, the Commander, Headquarters, V Corps, withdrew the action taken on 15 July 2004 and approved only so much of the sentence as provided for confinement for 15 months and a bad conduct discharge and, except for the part of the sentence extending to the bad conduct discharge, ordered the sentence executed.

7.  The applicant was reduced to pay grade E-1 on 3 August 2004.

8.  On 24 January 2005, the applicant withdrew his request for appellate review pending before the US Army Court of Criminal Appeals.  The findings and the sentence were reviewed and upheld pursuant to Article 64(c), Uniform Code of Military Justice.  On 11 February 2005, the convening authority ordered the bad conduct discharge executed.

9.  The applicant was discharged on 13 May 2005, in pay grade E-1, pursuant to the sentence of the general court-martial under the provisions of Army Regulation 635-200, Chapter 3.  He was issued a bad conduct discharge.  He was credited with 1 year, 10 months, and 6 days total active service.  He was also credited with lost time from 22 January 2004 to 9 December 2004 due to confinement.

10.  Item 27 (Reentry Code), of the applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty), shows the RE Code of "4".

11.  The applicant's DD Form 214, Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbon Awarded or Authorized), lists the following awards:  the Army Service Ribbon, the Sharpshooter Marksmanship Qualification Badge with Rifle Bar, and the Sharpshooter Marksmanship Qualification Badge with Grenade Bar.  The Purple Heart is not included in this list of authorized awards.

12.  The applicant submits a copy of a recommendation for him to be awarded the Purple Heart by Permanent Orders 280-7, dated 15 October 2003, prepared by the 180th Transportation Battalion, Fort Hood, Texas, for exceptionally meritorious service during Operation Iraqi Freedom from 3 March 2003 to 30 March 2004, and more specifically for distinguishing himself during the 69th Combat Support Group's Field Training Exercise by helping to establish the company perimeter and ensuring daily mission success in a field environment.  There is also no evidence in his records that he was wounded or treated for wounds as a result of hostile action.  

13.  On 17 July 2006, the applicant was advised that he was ineligible for review of his discharge, by the Army Discharge Review Board (ADRB), due to his conviction by a general court-martial.

14.  The applicant submits three character reference letters wherein the authors attest to the applicant's outstanding service as a Soldier and his performance.  It is evident these letters were prepared in conjunction with his court-martial action and not in conjunction with his request for a change in his RE Code and upgrade of his bad conduct discharge.

15.  Pertinent Army regulations provide that prior to discharge or release from active duty, individuals will be assigned reentry codes, based on their service records or the reason for discharge.  Army Regulation 601-210 covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the USAR.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment. This chapter includes a list of Armed Forces reentry codes, including RA RE Codes.

16.  RE–4 applies to persons not qualified for continued service by virtue of being separated from the service with non-waivable disqualifications such as persons discharged as a result of a court-martial.  

17.  RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable for reenlistment after a 2-year period has elapsed since discharge.  

18.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-11 of that regulation 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 sentence affirmed before it can be duly executed.

19.  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 change a discharge due to matters which should have been raised in the appellate process, 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.

20.  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.

21.  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.

22.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound sustained while in action against an enemy or as a result of hostile action.  Substantiating evidence must be provided to verify that the wound was the result of hostile action, the wound must have required treatment, and the medical treatment must have been made a matter of official record.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to a change of his RE Code to RE-3.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request and has not shown error, injustice, or inequity to justify the relief he now seeks.  

2.  The evidence shows that the applicant was convicted by general court-martial on 3 August 2004 of willfully damaging, by pouring sand in the engine block of an M818 tractor truck, military property of the US, the amount of said damage being in the sum of about $15,066; wrongfully and unlawfully making, under lawful oath, a false statement on 27 July 2003, and wrongfully and unlawfully making, under lawful oath, a false statement on 31 July 2003.  He was placed in confinement from 22 January 2004 to 9 December 2004.

3.  The applicant's discharge from the Army, by reason of a general court-martial, was approved and he was issued a bad conduct discharge.  A RE Code of "4" was applied to his DD Form 214.  The RE Code applied to the applicant's DD Form 214 is commensurate with and corresponds to the reason for the applicant's discharge.

4.  The applicant has failed to show, through the evidence submitted with his application or the evidence of record, that his separation which resulted in him receiving an RE Code of "4" was unjust.  

5.  The applicant has provided no evidence to show that his discharge was unjust or should be upgraded.  He has not provided evidence sufficient to mitigate the character of his discharge.  The applicant's separation was accomplished in compliance with applicable regulations with no indication of procedural errors, which would tend to jeopardize his rights.  The type of discharge directed and the reasons for that separation were appropriate considering all of the facts of the case.

6.  The applicant's available military records and documentation submitted with his application contain no matters upon which the Board may grant clemency and an upgrade of his bad conduct discharge to a general, under honorable conditions discharge.  In view of the foregoing, there is no basis for granting the applicant's request.

7.  The facts and circumstances related to how and why the applicant was recommended for award of the Purple Heart, as opposed to another award for achievement or service, are not known but it appears that the recommendation for the Purple Heart may have been made and approved incorrectly, based on administrative error. The evidence fails to show he met the criteria for award of the Purple Heart.  It is noted the Purple Heart was not included on the list of his authorized awards on his DD Form 214.  Even though permanent orders were prepared awarding him the Purple Heart, the applicant should not be allowed to capitalize from an apparent error; therefore, the Purple Heart will not be administratively added to his DD Form 214.

8.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise 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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___J____  _LDS____  __RSV___  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.




_____Linda D. Simmons______
          CHAIRPERSON




INDEX

CASE ID
AR20060010810
SUFFIX

RECON

DATE BOARDED
20070322
TYPE OF DISCHARGE
BCD
DATE OF DISCHARGE
20050513
DISCHARGE AUTHORITY
AR635-200, Chapter 3, Section IV
DISCHARGE REASON
Court-Martial
BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
A70
2.

3.

4.

5.

6.