RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  21 August 2007
	DOCKET NUMBER:  AR20070004685 


	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. Mohammed R. Elhaj

Analyst


The following members, a quorum, were present:


Mr. Conrad V. Meyer

Chairperson

Mr. Dale E. DeBruler

Member

Ms. Ernestine R. Moya

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 records be corrected by upgrading his reentry code (RE Code) from RE-4 to RE-1 (or any RE code that would allow him to rejoin the Army.)

2.  The applicant states, in effect, that he wants a chance to serve his country again by rejoining the Army.  He further states that he realizes he had made mistakes in the past but states that he has become a better person by graduating from college, holding leadership positions, and have matured overall. 

3.  The applicant provided a self-authored letter and proof of his college degree in support of his request. 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on   16 August 1999, the date of his discharge.  The application submitted in this case is dated 11 March 2007.

2.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

3.  The applicant's records show that he enlisted in the Regular Army on 28 December 1995.  Records further show that he completed basic combat and advanced individual training and was awarded military occupational specialty 11H (Heavy Weapons Infantryman).  The highest rank he attained while on active duty was private first class/pay grade E-3.

4.  The applicant’s records show that during his tenure on active duty, he was awarded the Army Service Ribbon, the Sharpshooter Marksmanship Qualification Badge with Grenade Bar, the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16), and the Parachutist Badge.  The applicant's records do not show any significant acts of valor during his military service.

5.  On 21 October 1997, the Fort Bragg, North Carolina Criminal Investigation Division (CID) suspected the applicant of wrongful use, possession, and distribution of a controlled substance. 

6.  On 19 November 1997, the applicant's immediate commander recommended that the applicant be tried by a general court-martial after reviewing statements of witnesses and exhibits of allegations of the applicant’s wrongful use, possession, and distribution of a controlled substance.     

7.  On 24 November 1997, the applicant's battalion commander reviewed the charges against the applicant and recommended a general court-martial.

8.  On 22 December 1997, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested a discharge in lieu of trial by court-martial under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations).  

9.  On 12 January 1998, the applicant waived his right to a pre-trial investigation, asked to be tried by a military judge alone, and signed an offer to plead guilty against all charges and specifications.  The separation authority accepted the applicant's offer on the same day.

10.  On 21 January 1998, the applicant's regimental commander reviewed the charges and specifications and recommended the applicant be tried by a general court-martial.

11.  On 23 January 1998, the Fort Bragg, North Carolina Staff Judge Advocate recommended the separation authority refer the charges for trial by general court-martial.

12.  On 23 January 1998, the separation authority disapproved the applicant's request for discharge in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200.


13.  On 26 January 1998, the applicant was informed that the charges against him were referred to trial by a military judge in a general court-martial.

14.  Headquarters, 82nd Airborne Division, Fort Bragg, North Carolina General Court-Martial Orders Number 10, dated 6 March 1998 show that the applicant was arraigned and tried at a general court-martial on 26 January 1998 for the following offenses:

	a.  Specification 1: the wrongful use of marijuana between on or about 1 July 1997 and 31 July 1997.  The applicant pled guilty to this specification.  The court finding was guilty to this specification.

	b.  Specification 2: The wrongful use of LSD between on or about 1 July 1997 and 31 July 1997.  The applicant pled guilty to this specification.  The court finding was guilty of this specification.

	c.  Specification 3: the wrongful use of LSD on or about 31 August 1997.  The applicant pled guilty.  The court finding was guilty of this specification.  

	d.  Specification 4:  The wrongful possession of LSDF on or about 20 September 1997.  The applicant pled guilty to this specification.  The court finding was guilty of this specification.

15.  On 26 January 1998, the applicant was sentenced to reduction to private/pay grade E-1, a forfeiture of all pay and allowances, confinement for 12 months, and discharge from the Army with a bad-conduct discharge.  The sentence was approved by order of the separation authority and except for that portion extending to a bad-conduct discharge, the sentence was ordered executed.

16.  On 15 July 1998, the Army Clemency and Parole Board denied the applicant's request for parole.  

17.  Headquarters, U.S. Army Armor Center and Fort Knox, Fort Knox, Kentucky, General Court-Martial Orders Number 139, dated 21 July 1998, show that the applicant's bad-conduct discharge as promulgated in General Court-Martial Orders Number 10, dated 6 March 1998, was upgraded to a general discharge.

18.  Headquarters, U.S. Army Armor Center and Fort Knox, Fort Knox, Kentucky, General Court-Martial Orders Number 9, dated 11 January 1999, show that the applicant's sentence of reduction to private/pay grade E-1, forfeiture of all pay and allowances, confinement for 12 months, and discharge from the Army with a bad-conduct discharge adjudged on 26 January 1998, as promulgated in General Court-Martial Orders Number 10, dated 6 March 1998 was affirmed.  The Orders further show that pursuant to action by the Secretary of the Army, dated 30 June 1998, the bad-conduct discharge was upgraded to a general discharge, the general discharge was executed, and the portion of the sentence pertaining to confinement was served. 

19.  On 16 August 1999, the applicant was discharged from active duty under the provisions of Army Regulation 635-200, chapter 3 by reason of court-martial.  The DD Form 214 he was issued shows he was given a character of service of "Under Honorable Conditions (General)," a Separation Program Designator code of "JJD," and "a RE Code of “4.”

20.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  In the version in effect at the time, chapter 3 established policy and prescribed procedures for the elimination of enlisted personnel by reason of trial by court-martial.  It states, in pertinent part, that a Soldier will be given a bad-conduct discharge pursuant only to an approved sentence of a general or a special court-martial.

21.  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 Regular Army RE codes.

	a.  RE–1 applies to persons completing their term of service who are considered qualified to reenter the Army.

	b.  RE-4 applies to individuals separated from their last period of service with a nonwaiverable disqualification.  This includes anyone with a Department of the Army imposed bar to reenlistment in effect at time of separation, or separated for any reason (except length of service retirement) with 18 or more years of active federal service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his RE code, currently RE-4, should be changed to RE-1. 

2.  The evidence confirms that the applicant’s RE code was assigned based on the fact that he was separated under the provisions of chapter 3, Army Regulation 635-200 after his trial by a general court-martial.  He received the appropriate RE code associated with his discharge.

3.  The Army Board for Correction of Military Records (ABCMR) does not correct records solely for the purpose of establishing eligibility for reenlistment or other benefits.  The applicant’s assigned RE-4 code is correct.

4.  In order to justify correction of a military record the applicant must, or it must otherwise satisfactorily 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

__cvm___  __ded___  __erm___  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.



							Conrad V. Meyer
_____________________
          CHAIRPERSON








INDEX

CASE ID
AR20070004685
SUFFIX

RECON

DATE BOARDED
20070821
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
100.0300
2.

3.

4.

5.

6.