RECORD OF PROCEEDINGS


	IN THE CASE OF:	


	BOARD DATE:	  13 December 2007
	DOCKET NUMBER:  AR20070008709 


	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, in effect, that his discharge be upgraded to a general, under honorable conditions, discharge and that his reenlistment code be changed to a higher code from "4."

2.  The applicant states, in effect, that in his case, it was not stated that he was barred from reenlistment.  He adds that it is his purpose to finish his time in the service and move up like he should have before.

3.  In support of his request, the applicant provided two letters addressed "To Whom it May Concern", and a DD Form 293, Application for the Review of Discharge or Dismissal from the Armed Forces of the United States.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the US Army Reserve, for 8 years, on 10 August 2000.  On 29 August 2000, he enlisted, for 4 years, in the Regular Army.  He successfully completed basic combat and advanced individual training and was awarded the military occupational specialty 35N, Switching Central Repairer.

2.  The applicant’s record shows he was promoted to the rank and pay grade, Private First Class, E-3, on 1 July 2002.  His record shows this was the highest rank and pay grade he held on active duty.  The record also does not contain any indication of documented acts of valor, achievement, or service warranting special recognition.

3.  On 19 February 2003, the applicant received a special court-martial.  He was found guilty, pursuant to his pleas, of wrongfully possessing 3/4 of a pound of marijuana, on 25 October 2002, with the intent of distributing the same; wrongfully distributing some amount of marihuana between or about 15 August and 23 October 2002; and wrongfully manufacturing some amount of marijuana between on or about 1 August and 31 August 2002.  The applicant was sentenced to be confined for 12 months and to be discharged from the service with a bad conduct discharge.

4.  On 27 June 2003, Special Court Martial Orders Number 6 was published by Headquarters, 24th Infantry Division (Mechanized) and Fort Riley, Fort Riley, Kansas.  The sentence was approved and except for that part of the sentence extending to a bad conduct discharge, would be executed, but the execution of 

that part of the sentence adjudging confinement in excess of eight months was suspended for eight months, at which time, unless the suspension was sooner vacated, the suspended part of the sentence would be remitted without further action.

5.  On 24 February 2005, Special Court-Martial Order Number 13 was published by Headquarters, US Army Field Artillery Center and Fort Sill, Fort Sill, Oklahoma. Special Court-Martial Order Number 6, Headquarters, 24th Infantry Division (Mechanized) and Fort Riley, having been finally affirmed, and Article 71(c) having been complied with, the bad conduct discharge was ordered executed.  That portion of the sentence extending to confinement had been served.

6.  The applicant was discharged, on 13 May 2005, with a bad conduct discharge.  The authority for his discharge is Army Regulation (AR) 635-200, chapter 3, section IV.  The narrative reason for separation shown on his DD Form 214, Certificate of Release or Discharge from Active Duty is "Court-Martial, Other."  The separation code is "JJD" and the RE Code applied to his DD Form 214 is "4."  On the date of his discharge, the applicant had completed 4 years, 1 month, and 29 days active service and had time lost for the period from 19 February 2003 through 2 September 2003.

7.  The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.  On 7 March 2007, the ADRB advised the applicant that after careful consideration of his military records and all other available evidence, it had determined that he had been properly discharged; accordingly, his request for a change in the character and/or reason for his discharge was denied.

8.  AR 635-200 provides the basic authority for the separation of enlisted personnel.  

9.  AR 635-5-1 states that separation codes are three-character alphabetic combinations, which identify reasons for, and types of separation from active duty.  The primary purpose of a separation code is to provide statistical accounting of reasons for separation.  They are intended exclusively for the internal use of DOD and the military services to assist in the collection and analysis of separation data.  It notes that "JJD" is the appropriate separation code for individuals separated as a result of a court-martial sentence.

10.  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.  AR 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.

	a.  RE–4 applies to persons not qualified for continued service because they were separated from the service with a non-waivable disqualification such as conviction and sentence of a court martial.

	b.  RE-3 applies to persons not qualified for continued Army service and personnel who are discharged, but the disqualification is waivable.

	c.  RE-2 applies to Soldiers being separated before completing a contract period of service whose reenlistment is not contemplated.

	d.  RE-1 applies to persons completing their term of service (ETS) who are considered qualified to reenter the Army, so long as all other qualifications are met.

11.  The SPD/RE Code Cross Reference Table, dated October 1999, 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."

12.  AR 635-5-1, in effect at that time, prescribed the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons.  The regulation shows that the SPD "JJD", as shown on the applicant's DD Form 214, is appropriate for discharge when the narrative reason for discharge is "Court Martial, Other."  The authority for discharge under this SPD is "Army Regulation 635-200, chapter 3, section IV."

13.  AR 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 separation specifically allows such characterization.

14.  The character reference letters the applicant submitted were written by his father, a US Army Sergeant First Class (Retired), and his former first sergeant who is also now retired.

15.  The applicant's father states he is writing on behalf of himself and his spouse. He states that to the best of his and his wife's knowledge, their son has been a law-abiding citizen who has been holding down a steady job and maintaining a household.  They feel he has learned from his previous mistakes and if given the opportunity to reenter the Army their son can be a valued asset.  They know the decision is the Board's but they request that their son be given the opportunity to be all that he can be.

16.  The applicant's former first sergeant states that although the applicant ended his career unfavorably, he was always a Soldier who could be counted on.  He proved himself to be a "can-do" Soldier through several field exercises and three rotations to the National Training Center.  He believes that he has been rehabilitated and he has a steadfast mission to regain the respect of others and regain his dignity amongst the Soldiers of today's Army.

DISCUSSION AND CONCLUSIONS:

1.  In order to justify correction of a military record, the applicant must show, 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.

2.  The evidence shows the applicant was convicted by a special court-martial and was sentenced, in addition to his confinement at hard labor, to be discharged with a bad conduct discharge for possessing 3/4 of a pound of marijuana, with the intent of distributing the same, and wrongfully distributing some amount of marihuana between or about 15 August and 23 October 2002.

3.  The evidence shows the applicant served that part of the approved sentence adjudging confinement by military authorities.  The evidence also shows the record of trial and sentence were reviewed and the sentence was affirmed.  Article 71(c) having been complied with, the bad conduct discharge was ordered executed.  The applicant was accordingly discharged with a bad conduct discharge.

4.  The overall quality of the applicant’s service was considered.  The record contains no documentary evidence of acts of valor or achievement which would warrant special recognition and, his service was determined not to be sufficiently meritorious to warrant an upgrade of his bad conduct discharge, with a corresponding change to his RE Code from "4."

5.  The character reference letters the applicant submitted to the Board were considered; however, these character reference letters are not sufficiently mitigating to merit an upgrade of the type of discharge he received.  The type of discharge imposed by the special court martial for the crime committed appears to have been appropriate and he is therefore not entitled to an upgrade of his discharge and a corresponding change to the reenlistment code applied to his discharge.

6.  In view of the foregoing, there is no basis for granting the applicant's request for an upgrade of his undesirable discharge to a general, under honorable conditions discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_x___  __x___  _x_____  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.




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          CHAIRPERSON



INDEX

CASE ID
AR20070008709
SUFFIX

RECON

DATE BOARDED
20071213
TYPE OF DISCHARGE
BCD
DATE OF DISCHARGE
20050513
DISCHARGE AUTHORITY
AR 635-200, Chapter 3, Section IV
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.

3.

4.

5.

6.