RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  18 December 2007
	DOCKET NUMBER:  AR20070009366 


	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

Ms. Deyon D. Battle

Analyst

The following members, a quorum, were present:


Mr. John N. Slone

Chairperson

Ms. Marla J. N. Troup

Member

Mr. Thomas M. Ray

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 correction of appropriate military records to show a reentry eligibility (RE) code which would allow reenlistment.  In effect, this constitutes a request for removal or waiver of those disqualifications which preclude reenlistment.  He also requests an upgrade of his general discharge to an honorable discharge.

2.  The applicant states that since his separation from the Army, he has continued to improve himself and to grow.  He states that he has used his knowledge and leadership skills to become a better person.  He states that while he was in the Army he completed training as a cook and that he stayed in his field of training after his discharge from the Army.  He states that he had been employed by the same company since 1994 and that he makes a good salary.  He states that he learned that the feelings of togetherness and family that he had while he was in the Army is difficult to find anywhere else and that he would like to prove to the military that he is a career Soldier.  He states that since he has been in the hotel business, he has remained fit and he has catered many banquets for the 82nd Division and all local Special Forces groups.

3.  The applicant provides a letter, dated 18 June 1997, from the Army Discharge Review Board notifying him that his bad conduct discharge had been upgraded to a general discharge; a copy of his Certificate of Release or Discharge from Active Duty (DD Form 214); copies of awards, decorations, citations, certificates and letters attesting to his post-service performance and accomplishments; a copy of a letter, dated 13 October 2001, from the Holiday Inn General Manager notifying him of a salary increase; a self-authored letter, dated 20 March 2001, addressed to whom it may concern expressing his desire to reenter the Army; a copy of his Food Service Manager License; a copy of a letter, dated 13 August 2003, to the Holiday Inn praising the applicant’s professional performance; copies of certificates for courses that he completed while he was on active duty; and a copy of his college transcript dated 27 June 2007.

CONSIDERATION OF EVIDENCE:

1.  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.

2.  After completing 14 days of prior active service in the United States Navy and being discharged in an entry level status as a result of an erroneous enlistment, the applicant enlisted in the Army in Raleigh, North Carolina, for 3 years on 30 August 1990.  He successfully completed his training as a food service specialist.  On 11 February 1991, he extended his enlistment for a period of 17 months.

3.  On 17 December 1991, the applicant was convicted by a special court-martial of signing a false official record, larceny of $300.00, and making a false official statement.  He was sentenced to a bad conduct discharge (BCD); confinement for 5 months; reduction to the pay grade of E-1, and a forfeiture of pay in the amount of $450.00 per month for 5 months.

4.  The convening authority approved the sentence as adjudged on 27 February 1992, and the United States Court of Military Review affirmed the findings and sentence as approved by the convening authority.

5.  Accordingly, on 16 March 1993, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 3 as a result of a duly reviewed and affirmed special court-martial conviction.  He had completed 2 years, 2 months, and 12 days of net active service.  He was furnished a BCD and assigned an RE-4 code.  

6.  On 5 March 1997, the Army Discharge Review Board upgraded the applicant's BCD to a general, under honorable conditions discharge.

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 provides that a soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence duly executed.




8.  Title 10, United Stated Code, section 1552, the authority under which this Board acts, provides, in pertinent part, that 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 modify the severity of the punishment imposed.

9.  An RE-4 code applies to persons not qualified for continued Army service based on a non-waivable disqualification.  Army Regulation 601-210 provides that enlisted personnel discharged as a result of a court-martial conviction will be assigned an RE-4 code.

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

2.  The type of discharge directed and the reasons therefore appear to be appropriate considering the facts of the case.

3.  The applicant's contentions have been noted.  His supporting documents have been considered during the review of his case.  However, he was separated and assigned an RE code in accordance with applicable regulations. He was discharged as a result of a special court-martial conviction and although the Army Discharge Review Board upgraded his discharge to a general discharge, he is not entitled to an honorable discharge as his service was not completely honorable.

4.  The RE-4 code that he was assigned appropriately indicates that he was discharged as a result of a court-martial conviction and he has provided no documentation to show that the RE code that he was assigned is incorrect.

5.  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.

6.  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

___JNS__  __MJNT_  __TMR__  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
AR20070009366
SUFFIX

RECON

DATE BOARDED
20071218
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.  30
105.0000/COURT-MARTIAL
2.  31
105.0100/SENTENCE INCLUDE DISCHARGE
3.  1021
100.0000/ADMINISTRATIVE MATTERS
4.  4
100.0300/REENLISTMENT CODE
5.

6.