RECORD OF PROCEEDINGS


	IN THE CASE OF:	   


	BOARD DATE:	  3 April 2008
	DOCKET NUMBER:  AR20070011879 


	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.


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	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 reentry eligibility (RE) code 4 be upgraded.

2.  The applicant states, in effect, that it has been 14 years since his discharge and he strongly feels he has paid his debt to the Government.  As a patriot of the United States, he respectfully requests this upgrade be approved so he may reenlist and return to active duty.

3.  The applicant adds that at the age of 38 he is confident that he is mentally and physically fit to meet and surpass the high standards that will be required of him.

4.  Having fought the war against terrorism for 11 months all throughout Iraq as a civilian contactor, he is fully aware of the risks and accepts them.  He believes that everyone deserves a second chance in life and he sincerely requests that the Board will grant him a second chance and allow him to be a Soldier again.

5.  In support of his request, the applicant provided no additional evidence beyond his application to the Board.

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.  The evidence shows the applicant enlisted in the US Army Reserve, Delayed Entry Program, on 13 March 1987.  The applicant enlisted in the Regular Army (RA) on 27 August 1987.  He successfully completed basic combat and advanced 

individual training at Fort Knox, Kentucky.  On completion of his advanced training, he was awarded the military occupational specialty 19D, Cavalry Scout.  The applicant later underwent one-station-unit training at Fort Benning, Georgia, and was awarded the MOS 11X, Fighting Vehicle Infantryman, as his primary MOS.

3.  The applicant continued his Army service through his enlistment and a reenlistment and attained the rank and pay grade, Specialist, E-4, on 27 October 1989.

4.  On 21 May 1993, the applicant was convicted by a general court-martial of committing sodomy with a female on an occasion between 1 June 1992 and 30 July 1992, committing indecent acts with a female under the age of 16 years on an occasion between 4 July 1992 and on or about 31 July 1992, committing adultery on an occasion between on or about 1 June 1992 and on or about 30 July 1992, and  committing adultery on an occasion between on or about 1 December 1991 and on or about 31 December 1991.

5.  The applicant was sentenced to reduction to the rank and pay grade, Private, E-1, forfeiture of all pay and allowances, confinement for 3 years, and a bad-conduct discharge.

6.  Only so much of the sentence that provided for reduction to the rank and pay grade, Private, E-1, forfeiture of $814.00 per month for 30 months, confinement for 3 years, and a bad-conduct discharge were approved.  The sentence, except for that part of the sentence extending to a bad-conduct discharge, was ordered executed.  That part of the sentence adjudging confinement in excess of 30 months was suspended for one year at which time unless the suspension was sooner vacated, the suspended portion of the sentence would be remitted without further action.

7.  All documents related to the applicant’s general court-martial are not available for the Board’s review; however, on 5 January 1994, Headquarters, Fort Hood, Fort Hood, Texas, published General Court-Martial Order Number 1 announcing that the sentence had been finally affirmed and Article 71(c) having been complied with, the bad-conduct discharge would be executed.

8.  The applicant was discharged with a bad-conduct discharge, on 14 March 1994, in the rank and pay grade, Private, E-1, under the provision of AR 635-200, Chapter 3, section IV.  The narrative reason shown on the applicant’s DD Form 214 is “Court Martial.”  The separation code entered on the applicant’s DD Form 214 is “JJD” and 

the Reentry Code is “4.”  At the time of the applicant’s discharge, he had 5 years, 8 months, and 25 days net active service, with the period 22 May 1993 through 14 March 1994 shown as lost time on his DD Form 214, Certificate of Release or Discharge from Active Duty.

9.  AR 635-200, in effect at the time, set forth policies, standards, and procedures to insure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons.

10.  AR 635-200, Chapter 3, provided that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

11.  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.  AR 601-210 covers eligibility criteria, policies, and procedures for enlistment and processing into the 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.  An RE-4 code applies to persons separated from their last period of service with a non-waivable disqualification.  This disqualification includes anyone separated from the Army as a result of court-martial and who has been issued a bad-conduct discharge.

12.  AR 635-5-1 (SPD (Separation Program Designator) Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPD codes to be used for these stated reasons.  The regulation, in effect at the time, shows that the SPD code “JJD” as shown on the applicant’s DD Form 214 specifies the narrative reason for separation as “Court-Martial, Other,” and that the authority for separation under this separation program designator is “AR 635-200, Chapter 3”.  Additionally, the Separation Program Designator (SPD) Reentry (RE) Codes Cross Reference Table establishes RE code “4” as the proper reentry code to assign to soldiers separated with this separation code and for this reason.

13.  RE–4 applies to persons not qualified for continued service by virtue of being separated from the service with non-waivable disqualifications such as persons discharged with a bad-conduct discharge adjudged as result of a general or a special court-martial.

14.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's separation was accomplished in compliance with applicable regulations with no indication of procedural error, which would tend to jeopardize his rights.

2.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, 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.

3.  The applicant who was then serving on active duty in the rank and pay grade, Specialist, E-4, was convicted by a general court-martial and as part of the sentence that was adjudged, he was ordered discharged with a bad-conduct discharge.

4.  The separation code that was entered on the applicant’s DD Form 214 “JJD” identifies those individuals who are discharge as a result of “Court-Martial, Other.”

5.  The applicant's RE Code of "4" is consistent with the separation code and the reason for his separation and there is no justifiable reason for a change to the RE Code that was affixed to his DD Form 214.

6.  While the applicant may wish to return to active duty service in the Army, the facts that he was convicted by a general court-martial and received a bad-conduct discharge still remains.  Based on the evidence and the reasons for his general court-martial, there is no justifiable reason to remove or change the RE code that was entered on his DD Form 214.

7.  In view of the circumstances in this case, the assigned reenlistment eligibility code was and still is appropriate.  

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