RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  12 April 2007
	DOCKET NUMBER:  AR20060013911


	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

Mrs. Victoria A. Donaldson

Analyst

The following members, a quorum, were present:


Mr. Curtis L. Greenway

Chairperson

Mr. Michael J. Flynn

Member

Mr. Edward E. Montgomery

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 so that he can re-enlist in the Army and serve in Iraq.

2.  The applicant states, in effect, that he has earned two advanced degrees since his discharge and would like the opportunity to redeem himself and serve his country.

3.  The applicant provides no additional documentary evidence in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show that he enlisted in the Regular Army on 4 September 1987.  He completed one station unit training and was awarded the military occupational specialty (MOS) 11M (Fighting Vehicle Infantryman).  The highest grade the applicant held was specialist/pay grade E-4.

2.  On 27 August 1991, the applicant pled guilty at a General Court-Martial of the following offenses: being absent without leave (AWOL) from 24 September 1990 until apprehended on 3 January 1991; being AWOL from 15 May 1991 until apprehended on 30 May 1991; missing movement through design on 26 September 1990; and impersonating a noncommissioned officer on 3 January 1991.

3.  The applicant was sentenced to reduction to private/pay grade E-1, forfeiture of all pay and allowances, confinement for two years, and to be separated from the service with a bad conduct discharge.  

4.  On 24 October 1991, the convening authority approved the findings and the sentence in the case.

5.  The record does not reflect the reviews, if any, by the appellate courts.  However, the convening authority's promulgating order, Headquarters, US Army Garrison General Court-Martial Orders Number 14, dated 21 March 1994, which directed the execution of the bad conduct discharge, shows that all required appellate reviews were conducted.



6.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that he was discharged as a result of court-martial on 12 April 1994, under the provisions of Army Regulation 635-120 (Personnel Separations), with the separation code JJD and the Reentry code 4.  

7.  On 17 July 2006, the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his bad conduct discharge.  However, pursuant to Title 10 United States Code section 1553, the ADRB may not upgrade punitive discharges adjudged by a general court-martial.  Accordingly, on 6 September 2006, the ADRB returned the applicant's request without action.

8.  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 (Regular Army and Army Reserve Enlistment Program) 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.  RE-4 applies to persons who are "not considered fully qualified for reentry or continuous service at the time of separation and the disqualification is not waivable."

9.  Army Regulation 635-200 provided for separation of enlisted personnel with a bad conduct discharge based on an approved sentence of a general court-martial.  

10.  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.

11.  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.

12.  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 (emphasis added), 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his bad conduct discharge should be upgraded because he wants to re-enlist in the Army and serve is Iraq.

2.  The applicant's records clearly show he was tried and convicted by a General Court-Martial for being AWOL, missing movement through design, and impersonating a noncommissioned officer.  Records further show that the applicant had 587 days of lost time due to AWOL and confinement.

3.  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.  

4.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  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.  After review of the applicant’s entire record of service, it is clear that his service did not meet the criteria for a general or an honorable discharge.  As a result, there is insufficient basis for a grant of clemency in the form of an honorable or a general discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_MJF____  _EEM___  __CLG__  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.






___Curtis L. Greenway____
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

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

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.