RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  20 February 2008
	DOCKET NUMBER:  AR20070011995 


	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. Patrick H. McGann, Jr.

Chairperson

Ms. Eloise C. Prendergast

Member

Mr. Michael J. Flynn

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 bad conduct discharge be upgraded to honorable and that his Reenlistment (RE) Code be changed to RE Code 1. 

2.  The applicant states, in effect, that the court-martial was unjust.  He says that he was wrong for drinking and driving when he lost control on a sheet of black ice and slid into a building.  However, he contends that since no one was hurt and his insurance paid for the damage, he should have received nonjudicial punishment.  He further states that he was made an example for what could happen if you drink and drive.  He contends that the events of that night were totally out of character.   He was a kid at the time.  Today he desires to have a second chance to serve his country.  He states that he was a good Soldier.  

3.  The applicant provides copies of his Certificates of Release or Discharge from Active Duty (DD Forms 214).

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.  On 28 October 1980, the applicant enlisted in the Regular Army for 3 years.  He completed his initial training and was awarded military occupational specialty (MOS) 13B1O (Cannon Crewman).  He attained specialist four, pay grade E-4 on 
1 February 1983.

3.  On 27 October 1983, the applicant was released from active duty and transferred to the United States Army Reserve Control Group (Reinforcement).  He had completed 3 years active duty service.   His service was characterized as honorable.

4.  On 16 April 1986, the applicant again enlisted in the Regular Army as a private first class, pay grade E-3.  He completed training and was awarded MOS 63D1O (Self-Propelled Field Artillery System Mechanic).

5.  On 16 May 1986, the applicant was promoted to specialist four, pay 
grade E-4.

6.  On 14 July 1986, the applicant was assigned duty as a field artillery systems mechanic with the Service Battery, 4th Battalion, 3rd Field Artillery Brigade, in the Federal Republic of Germany.

7.  On 22 September 1986, the applicant received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave during the period from 1 to 5 August 1986.  The punishment included reduction to private first class, pay grade E3 (suspended); a forfeiture of 7 days pay; and 14 days of extra duty.

8.  On 7 April 1987, charges were preferred under the UCMJ for violation of Article 91 (two specifications) (striking a superior noncommissioned officer and being disrespectful in language and deportment to a superior commissioned officer); for violation of Article 108 (recklessly spoil a private dwelling house, the amount of damage being over $10,000); for violation of Article 109 (damaging property other than military property valued at over $500.00); for violation of Article 111 (drunken driving); and for violation of Article 134 (two specifications) bribery and being drunk and disorderly.

9.  On 28 April 1987, a General Court-Martial was convened.  The applicant offered a plea of guilty to all charges and specifications in return for a more lenient sentence pursuant to the terms of a pretrial agreement.  

10.  The military judge accepted the applicant's pleas and found him guilty of all charges and specifications.  He sentenced the applicant to reduction to private (pay grade E1), a forfeiture of $500.00 pay per month for 12 months, confinement at hard labor for 1 year, and a bad conduct discharge.  

11.  On 24 June 1987, the Staff Judge Advocate, in a written review for the convening authority, summarized the evidence and trial discussion.  The Staff Judge Advocate recommended approval of only so much of the sentence as provided for a bad conduct discharge, confinement for 8 months, a forfeiture of $500.00 pay for 8 months, and reduction to pay grade E-1. 

12.  On 8 July 1987, the trial defense counsel petitioned for clemency, requesting that the applicant not be confined for more then 6 months or that the BCD be suspended.  The convening authority denied the petition. 

13.  On 10 July 1987, the convening authority approved only so much of the sentence as provided for a reduction to private, pay grade E1; forfeitures of $500.00 per month for 8 months; confinement at hard labor for 8 months; and a bad conduct discharge.  

14.  On 21 October 1987, the United States Army Court of Military Review, on consideration of the entire case, held the findings of guilty and the sentence as approved by the convening authority correct in law and fact.  Accordingly, it affirmed the findings of guilty and the sentence.

15.  On 30 November 1987, the applicant submitted a Request for Final Action (DA Form 4919), wherein he stated that he did not desire to petition for or to prosecute an appeal to the United States Court of Military Appeals.

16.  General Court-Martial Order Number 830, United States Army Correctional Activity, Fort Riley, Kansas, dated 22 December 1987, provided that the sentence to a bad conduct discharge; confinement for 8 months; forfeiture of $500.00 pay per month for 8 months; and reduction to private, pay grade E1; adjudged on 28 April 1987, had been affirmed.  That portion of the sentence pertaining to confinement was served.  Article 71(c), UCMJ, having been complied with, the bad conduct discharge was to be executed.

17.  The applicant's Certificate of Release or Discharge from Active Duty 
(DD Form 214) shows that he was discharged on 5 January 1988 under the provisions of Army Regulation 635-200, chapter 3.  He received a bad conduct discharge.  Accordingly, he was given a Separation Program Designator (SPD) Code of JJD and an RE Code of 4.

18.  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.

19.  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 AR 635-200, Chapter 3, as a result of 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.

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 applicant has not provided any convincing argument or substantiating evidence to support his contention that he suffered an injustice as a result of his court-martial.  

3.  The RE Code 4, establishing his ineligibility for enlistment/reenlistment, was correctly entered on his separation document in accordance with governing regulations.  There is no evidence of error or injustice.

4.  There is no apparent basis for removal or waiver of the applicant’s disqualification that established the basis for the RE Code 4.  While the applicant’s desire to continue in the service to his country is noted, there are no provisions authorizing the change of an RE Code for this purpose.

5.  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

_ ECP__  __MJF___  __PHM __  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.





__ Patrick H. McGann, Jr.______
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.