RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  20 February 2008
	DOCKET NUMBER:  AR20070012960 


	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. 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 an upgrade of his bad conduct discharge to a general discharge and correction of his reentry code (RE) from RE-4 to one that corresponds with a general discharge. 

2.  The applicant states that he had no indiscipline prior to or after his Court-Martial.  He further adds that he has proven to be an honest, honorable, and respectable person since then.

3.  The applicant did not provide any additional documentary evidence in support of his application. 

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 applicant's records show that he enlisted in the U.S. Army Reserve (USAR) on 17 May 1977 and subsequently had a series of reenlistments in the USAR.  He held several military occupational specialties (MOS) to include 11B (Infantryman) and 91B (Medical Specialist).  On 28 April 1992, he enlisted in the Regular Army for a period of 3 years in MOS 18D (Special Forces Medical Sergeant).  He later reenlisted for a period of 3 years on 1 September 1994.  The highest rank he attained was sergeant first class/E-7.

3.  The applicant’s records further show that he was awarded the Army Commendation Medal; the Army Achievement Medal (3rd Award); the Army Superior Unit Award; the Good Conduct Medal (2nd Award); the National Defense Service Medal; the Armed Forces Expeditionary Medal; the Humanitarian Service Medal; the Noncommissioned Officer Professional 

Development Ribbon with Numeral 3; the Army Service Ribbon; the Army Lapel Button; the United Nations Medal; the Expert Field Medical Badge; the Master Parachutist Badge; the Senior Parachutist Badge; the Special Forces Tab; the Korean Senior Parachutist Badge; and the Tunisian Parachutist Badge.  The applicant's record does not show any significant acts of valor during his military service.

4.  On 24 September 1997, the applicant pled guilty at a General Court-Martial to:

	a.  one specification of possessing valium, Vistaril, Ketaset, and morphine sulfate, on or about 28 May 1997;

	b.  one specification of wrongfully possessing marijuana, on or about 28 May 1997;

	c.  one specification of violating a general order by wrongfully removing a military sword from the Joint Operational Area between on or about 20 September 1994 and 31 March 1995;

	d.  one specification of violating a general order by wrongfully removing a Taurus Pistol from the Joint Operational Area between on or about 20 September 1994 and 31 March 1995;

	e.  one specification of failing to give notice and turn over to proper authority without delay certain captured or abandoned property between on or about 20 September 1994 and 31 March 1995;

	f.  one specification of wrongfully storing explosive materials on or about 28 May 1997;

	g.  one specification of unlawfully possessing a machine gun on or about 28 May 1995; and

	h.  one specification of unlawfully bringing a firearm into the United States between on or about 20 September 1994 and 31 March 1995.

5.  The Court found the applicant guilty of all charges and specifications and sentenced him to a bad conduct discharge, confinement for 30 months, forfeiture of all pay and allowances, and reduction to the grade of private/E-1.  The sentence was adjudged on 24 September 1997.

6.  On 9 January 1998, the convening authority approved the sentence and except for the part of the sentence extending to a bad conduct discharge, he ordered the sentence executed.  Additionally, the applicant was credited with 119 days of confinement against his sentence to confinement.

7.  On 21 September 2001, U.S. Army Disciplinary Barracks, U.S. Army Combined Arms Center and Fort Leavenworth, Fort Leavenworth, Kansas, published General Court-Martial Order Number 70 indicating that the portion of the applicant's sentence pertaining to confinement had been served.  He was accordingly discharged from military service on 31 March 2002.  The DD Form 214 he was issued confirms that he was discharged under the provisions of chapter 3 of Army Regulation 635-200 (Personnel Separations) with a bad conduct discharge as a result of Court-Martial.  This form further confirms that the applicant completed 14 years, 7 months, and 27 days of creditable service and 855 days of lost time due to confinement.

8.  The U.S. Army Disciplinary Barracks, U.S. Army Combined Arms Center and Fort Leavenworth, Fort Leavenworth, Kansas, General Court-Martial Order Number 70, dated 21 September 2001, indicates that the U.S. Army Court of Military Review found the approved findings of guilty and the sentence correct in law and fact, determined the basis of the entire record that they should be approved, and affirmed such findings of guilty and the sentence.

9.  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.

10.  Army Regulation 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 the Soldier’s separation specifically allows such characterization.



11.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits 
provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

12.  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, in effect at the time, prescribed basic eligibility for prior service applicants for enlistment.  That chapter included a list of Armed Forces RE codes, including Regular Army RE codes.  RE-4 applied to individuals separated from their last period of service with a nonwaiverable disqualification.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded.

2.  Evidence of record shows that the applicant was convicted by a General Court-Martial, which 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.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

3.  Evidence of record further 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, due to Court-Martial conviction.  Therefore, he received the appropriate RE code associated with his discharge.

4.  After review of the applicant’s entire record of service, it is clear that his service did not meet the criteria for a general or an honorable discharge.  As a result, the applicant is not entitled to relief.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__phm___  __ecp___  __mjf___  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.