RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  10 April 2007
	DOCKET NUMBER:  AR20060012762 


	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. Joyce A. Wright

Analyst


The following members, a quorum, were present:


Mr. Kenneth L. Wright 

Chairperson

Ms. LaVerne M. Douglas

Member

Ms. Ernestine Fields

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 bad conduct discharge (BCD) be upgraded in order to meet the necessary requirements to reenlist.

2.  The applicant states, in effect, that he does not believe that there were any errors or injustices in his record.  He wants to reenlist in the Army and needs an upgrade of his discharge to do so. 

3.  The applicant provides an additional statement.  He states that he takes full responsibility for the mistakes he made while serving in the Army.  He was young at the time and very immature.  Now that he is an adult, there is not one day that goes by that he does not regret what he has done to his country and his fellow Soldiers.  He has learned from his mistakes and his wrong doings.  He has tried several times to reenlist since receiving his BCD.  He is now asking for a second chance to make it up to his country, the military, and himself.

4.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he enlisted in the Regular Army on 9 January 2001, for 3 years, in pay grade E1.  The applicant successfully completed basic combat training and advanced individual training at Fort Benning, Georgia. On completion of his OSUT (one station unit training), he was awarded the military occupational specialty (MOS), 11B, Light Weapons Infantryman. 

2.  At a general court-martial on 18 September 2002, the applicant entered mixed pleas to numerous offenses under the UCMJ (Uniform Code of Military Justice).  He was found guilty of absenting himself without leave (AWOL) on five occasions (Charge I/specification 1 - 5); wrongfully using marijuana on diverse occasions between on or about 1 June 2002 and 20 June 2002 (Charge III/specification); of forging a signature (Charge IV/specification); of failing to pay a just debt (Charge VI/specification); and an additional charge of committing larceny.  

3.  He was found not guilty of:  escaping from the custody of SPC R__J__H__, a person authorized to apprehend him, on or about 20 June 2002 (Charge II/specification); and of assaulting and forcing SPC J__ R__ to the ground with his hand, on or about 20 June 2002 (Charge V/specification).  These charges 
were dismissed.  His sentence consisted of a reduction to the pay grade E-1, confinement for 18 months, and a BCD.  The sentence was approved on 27 June 2003.  He was credited with 89 days of confinement against the sentence to confinement.  

4.  On 27 May 2004, the United States Army Court of Criminal Appeals (ACCA) affirmed the findings, except that the applicant would be credited with 89 days of confinement against the sentence to confinement.

5.  On 15 October 2004, after completion of appellate review, the convening authority ordered the BCD executed.

6.  On 3 December 2004, the applicant was discharged from the Army pursuant to the sentence of the general court-martial and was issued a BCD.  He had completed 2 years, 4 months, and 20 days of creditable service and had 1 year, 5 months, and 29 days of lost time due to confinement.  

7.   Item 26 (Separation Code), of the applicant's DD Form 214, shows the entry "JJD."  Item 27 (Reentry Code), of the applicant’s DD Form 214, shows the entry "4" and the narrative reason for his separation is, "court-martial, other."

8.  The applicant's case is ineligible for review by the Army Discharge Review Board (ADRB) due to his conviction by a general court-martial.

9.  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.

10.  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.

11.  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.
12.  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 (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 reentry codes, including RA RE codes.

13.  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 under the provisions of Army Regulation 635-200, chapter 3, as a result of court-martial.  

14.  The SPD/RE (Separation Program Designator/Re-entry) Code Cross Reference Table, dated 31 March 2003, provides instructions for determining the RE Code for Active Army Soldiers and Reserve Component Soldiers separated for cause.  It also shows the SPD code with a corresponding RE Code and states that more than one RE Code could apply.  The Soldier’s file and other pertinent documents must be reviewed in order to make a final determination.  The SPD code of "JJD" has a corresponding RE code of "4."

15.  Army Regulation 635-5-1 prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPD to be used for these stated reasons.  The regulation shows that the SPD of "JJD" as shown on the applicant’s DD Form 214 is appropriate for involuntary discharge when the narrative reason for discharge is "court martial, other."  

DISCUSSION AND CONCLUSIONS:

1.  Trial by court-martial was warranted by the number and gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulation.

2.  The evidence of record shows that the applicant was convicted by a general court-martial for being AWOL on five occasions, the wrongful use of marijuana, forgery, and failure to pay a just debt.  He was discharged pursuant to the sentence of a general court-martial and was issued a BCD.  



3.  The applicant alleges that he does not believe that there were any errors or injustices in his record.  The record does not disclose any errors or an injustice in this case.  These acts of misconduct are not condoned by the Army.

4.  There is no evidence in the applicant's records, and the applicant has provided no evidence, to show that his discharge was unjust.  He also has not provided evidence sufficient to mitigate the character of his discharge.

5.  The applicant's separation code of "JJD" and RE Code of "4" were entered in their appropriate spaces on the DD Form 214 and the narrative reason for his discharge was shown to be," court martial, other."

6.  The applicant's separation code of "JJD" is consistent with the basis for his separation and the RE Code applied to his DD Form 214 is consistent with the separation code.  It is apparent that the applicant wishes to reenlist; however, his BCD, with an SPD of "JJD" and RE Code of "4," prevents him from doing so.

7.  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

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___KLW_  __LMD__  ___E.F.__  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.


_____Kenneth Wright____
          CHAIRPERSON

INDEX

CASE ID
AR20060012762
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070410
TYPE OF DISCHARGE
BCD
DATE OF DISCHARGE
20041203
DISCHARGE AUTHORITY
AR .635-200, chap 3
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.