RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  22 March 2007
	DOCKET NUMBER:  AR20060011010 


	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.


x

	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 reconsideration of his earlier request that his Reentry (RE) code of RE-4 be changed from RE-4 to RE-1 to allow him to reenter the service.  As a new issue, he also requests that, in effect, his separation code of "JJD" be changed.  

2.  The applicant states that he was declared unfit for further military service by an Army medical doctor.  He states the determination regarding his unfitness was made on 21 November 1990, two weeks before the court-martial.  He states that his condition deteriorated when the Article 90 was issued.  

3.  The applicant provides a Statement of Record, dated 9 November 1990; a personal statement, dated 22 July 2006; his medical documents; and a DA Form 3947 (Medical Evaluation Board (MEB) Proceedings), dated 11 December 1990.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20040008876 on 14 July 2005.

2.  The applicant’s request for correction of his separation code of “JJD” is a new issue that will be considered by the Board.

3.  The applicant enlisted in the Regular Army on 17 May 1990.  He completed basic training and advanced individual training and was assigned to Headquarters and Headquarters Company, 2nd Battalion, 158th Aviation Regiment, 6th Cavalry Brigade at Fort Hood, Texas as a chaplain’s assistant. 

4.  On 12 November 1990, the applicant was confined by military authorities pending court-martial.  

5.  On 21 November 1990, a Medical Evaluation Board (MEB) examination diagnosed the applicant as having chronic bilateral knee pain - patellofemoral pain syndrome.  

6.  On 5 December 1990, he was convicted by a special court-martial of disobeying a superior noncommissioned officer.  He was sentenced to confinement for 4 months, a forfeiture of $482.00 pay per month for 4 months, and a Bad Conduct Discharge (BCD).  

7.  On 11 December 1990, the MEB referred him to a Physical Evaluation Board (PEB).  There is no record of PEB proceedings.  

8.  On 27 September 1991, the United States Army Court of Military Review affirmed the findings and sentence as approved by the convening authority.

9.  The applicant was discharged on 29 October 1991 under the provisions of Army Regulation 635-200, chapter 3, Section IV, as a result of court-martial.  He completed 1 year, 2 months, and 4 days of active military service with 101 days of lost time due to confinement.

10.  His DD Form 214 shows he was issued an RE code of RE-4 and a Separation Program Designator (SPD) of "JJD."

11.  In 1997, the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  He was granted a personal appearance before the ADRB Travel Panel in Los Angeles, California on 5 May 1997 and was represented by counsel.  The ADRB determined that while his discharge was proper, clemency was warranted in his case and voted unanimously to upgrade his BCD to a general discharge.  The ADRB voted unanimously not to change the narrative reason or authority for his discharge.

12.  Army Regulation 635-5-1 (SPD Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPD codes to be used for these stated reasons.  The regulation, in effect at the time, shows that the SPD code “JJD” as shown on the applicant’s DD Form 214 specifies the narrative reason as a result of court-martial, other and that the authority for discharge under this SPD is “AR 635-200, paragraph 3-11."  Additionally, Table 2-3 (SPD/RE Code Cross Reference Table), in effect at the time, established RE code 4 as the proper reentry code to assign to Soldiers discharged for this reason.

13.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.  Paragraph 4-1, states, in pertinent part, that Soldiers charged with an offense under the Uniform Code of Military Justice (UCMJ) or who is under investigation for an offense chargeable under the UCMJ which could result in dismissal or a punitive discharge may not be referred for, or continue, disability processing.

14.  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 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.  Paragraph 3-6 also states that RE codes are not upgraded unless they are administratively incorrect when originally issued.

15.  RE code 4 applies to persons not qualified for continued Army service and the disqualification is not waivable.

DISCUSSION AND CONCLUSIONS:

1.  It is noted that the trial by court-martial was warranted by the gravity of the offense 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.

2.  The applicant was convicted by a special court-martial on 5 December 1990 for disobeying a superior noncommissioned officer and was sentenced to confinement for 4 months, a forfeiture of pay for 4 months, and a BCD.

3.  The applicant’s MEB examination on 21 November 1990 referred him to PEB. However, he was in pre-trial confinement starting on 12 November 1990.  It appears the court-martial charges were filed at that time.  As a result, it appears the disability processing was not continued per regulatory guidance.

4.  It appears that the applicant’s special court-martial convening authority and unit commander determined that his medical condition was not the substantive cause of the misconduct that led to his BCD.  

5.  The applicant’s DD Form 214 properly reflects he was discharged with a separation code of “JJD” (As a Result of Court-Martial) and was assigned an RE code of RE-4 in accordance with the governing regulation in effect at the time.

6.  The applicant has not provided any evidence and there is no evidence of record which shows the RE code or separation code issued to him was administratively incorrect, in error, or unjust.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

x_____  x_____  x______  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  Regarding the applicant’s request that his RE code be changed, 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 to amend the decision of the ABCMR set forth in Docket Number AR20040008876, dated 14 July 2005.

2.  Regarding the applicant’s request that his separation code be changed, 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.



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          CHAIRPERSON


INDEX

CASE ID
AR20060011010
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070322
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
100.0300
2.
110.0200
3.

4.

5.

6.