RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  17 July 2007
	DOCKET NUMBER:  AR20060016742 


	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.  


Ms. Catherine C. Mitrano

Director

Mr. Michael L. Engle

Analyst


The following members, a quorum, were present:


Mr. Jonh N. Slone

Chairperson

Mr. David K. Haasenritter

Member

Ms. LaVerne M. Douglas

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 be upgraded to honorable.  He further asks that his reentry (RE) code be changed.

2.  The applicant states, in effect, that what he did was not the best thing.  He hurt his friend, the Army, the United States, and most importantly, his family.  He knows what he did was wrong and he served 10 long months in jail for it.  While in jail he took classes to help him deal with his drinking and attitude.  Since being released from jail, he has worked in California, Nevada and Alabama.  The applicant further states that he has learned a lot and now knows that he can be strong even in the worst of places.  He desires to be a Soldier again and to serve his country. 

3.  The applicant provides copies of his Certificate of Release or Discharge from Active Duty (DD Form 214), general court-martial orders, and a letter of support from his father. 

CONSIDERATION OF EVIDENCE:

1.  On 8 February 2000, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 11B1O (Infantryman).  He attained the rank of private first class, pay grade E3 on 1 July 2002.

2.  On 23 December 2002, charges were preferred under the Uniform Code of Military Justice (UCMJ) for violation of Article 92, failure to obey a lawful order; Article 112a, wrongful use of a controlled substance; and Article 128, aggravated assault.

3.  On 6 January 2003, the applicant offered to plead guilty to all charges; to enter into a written stipulation of fact with the trial counsel as to the circumstances of the offenses; to be tried by military judge alone; to not request personal appearance of out-of-state witnesses; and to be tried no later than January 2003.   In exchange for his plea offer, the convening authority agreed to take the actions specified in his offer and to direct the trial counsel to dismiss charge II and its specification if the military judge granted a defense suppression motion.  The applicant's offer to plead was accepted the same day.

4.  On 9 January 2003, a general court-martial was convened.  The defense motion to suppress the results of the urinalysis test was granted.  The applicant pled guilty before a military judge to the charges and specifications for violation of Articles 92 and 128.  He pled not guilty to the charge and specification for violation of Article 112a.  The Government made a motion to dismiss the charge and specification for violation of Article 112a, which was granted.  The military judge found him guilty of the remaining charges and specifications and sentenced him to reduction to private, pay grade E1, total forfeitures, confinement at hard labor for 18 months, and a bad conduct discharge.

5.  On 30 September 2003, the United States Army Court of Criminal Appeals affirmed the findings of guilty and the sentence.

6.  Article 71(c) having been complied with, General Court-Martial Order Number 35, United States Army Field Artillery Center and Fort Sill, Fort Sill, Oklahoma, dated 5 February 2004, ordered execution of the bad conduct discharge.  On 
11 March 2005, the Army separated the applicant with a bad conduct discharge.

7.  Items 23 thru 28 of the applicant's DD Form 214 show that he was given a bad conduct discharge, under the provisions of Army Regulation 635-200, Chapter 3, with a Separation Program Designator (SPD) Code of JJD and a Reentry Code of 4.

8.  Army Regulation 601-210 prescribes eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment and includes a list of armed forces RE Codes including RA RE codes.  RE 4 applies to persons separated from their last period of service with a non-waivable disqualification.  That regulation further provides that RE codes may only be changed if they are determined to be administratively incorrect. 

9.  Army Regulation 635-5-1, SPD Codes, provides the specific authorities (regulatory or directive), reasons for separating soldiers from active duty, and the SPD codes to be entered on the DD Form 214. The SPD code of JJD was the appropriate code for the applicant based upon the guidance provided in Army Regulation 635-5-1 for Soldiers separating under the provisions of Army Regulation 635-200, Chapter 3, for court-martial. Additionally, Table 2-3 (SPD/RE Code Cross Reference Table), Army Regulation 635-5 (Separation Documents) establishes RE Code 4 as the proper RE code to assign to Soldiers for this reason.




10.  The applicant's father stated in his letter of support, that he is an energetic, decisive, intelligent and focused individual who grasps new ideas and practices quickly.  He further stated that if allowed to return to the United States Army, the applicant would be a very motivated, mature, future leader of men, prepared for the structured life of the military.

DISCUSSION AND CONCLUSIONS:

1.  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 final discharge appropriately characterizes the misconduct for which the applicant was convicted.

2.  The SPD and RE code shown on his DD Form 214 are appropriate in light of his offense and discharge characterization.

3.  The applicant’s reported good post-service conduct is noted.  However, it does not sufficiently mitigate his offenses committed during his military service.

4.  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

__LMD__  ___DKH _  __JNS___  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.





______John N. Slone______
          CHAIRPERSON




INDEX

CASE ID
AR20060016742
SUFFIX

RECON
 
DATE BOARDED
 20070717
TYPE OF DISCHARGE
BCD
DATE OF DISCHARGE
20050311
DISCHARGE AUTHORITY
AR 635-200, ch 3. . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
110.0200
2.

3.

4.

5.

6.