RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  15 April 2008
	DOCKET NUMBER:  AR20080001276 


	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.  




Director



Analyst

      The following members, a quorum, were present:




Chairperson



Member



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 Reentry (RE) Code be changed to a more favorable code.

2.  The applicant states that the punishment was too harsh and unjust for his crime.  He further states that when all of this happened he was counseled, ordered to turn in his checkbook, go to a check writing class, and ordered to pay restitution.  Within 1 week of a change of command ceremony he was brought up on official charges.

3.  The applicant provides no additional documents with his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the United States Army Reserve (USAR) under the delayed entry program (DEP) on 21 November 1995 for a period of 8 years.  On 30 July 1996, he enlisted in the Regular Army for a period of 3 years, training as an M-1 armor crewman and enrollment in the Army College Fund.  

2.  He completed his one-station unit training (OSUT) at Fort Knox, Kentucky and was transferred to an armor company in Vilseck,Germany.  

3.  On 28 August 1997, he was convicted by a Special Court-Martial of writing
14 bad checks to the Army and Air Force Exchange Service (AAFES) in the amount of $4,098.63 during the period of 24 December 1996 and 8 February 1997.  He was sentenced to confinement for 2 months, a forfeiture of pay, reduction to the pay grade of E-1, and a bad conduct discharge (BCD).   

4.  The findings and sentence as approved by the convening authority were affirmed by the Court of Military Review and on 18 August 1999, the applicant was discharged pursuant to a duly reviewed and affirmed court-martial conviction.  He had served 2 years, 11 months and 3 days of total active service and had 44 days of lost time due to confinement.  He was issued a Separation Code of “JJD” and an RE Code of “4.”  

5.  On 7 November 2006, the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge contending that he was 19 years of age at the time and had never had a checkbook.  He stated that he initially received nonjudicial punishment for his first offense and that he has made restitution, learned how to balance a checkbook, and that he desired another chance to serve in the Army.
6.  After reviewing the evidence in the applicant’s case, the ADRB determined that clemency was warranted in the applicant’s case and the ADRB unanimously voted on 15 December 2007 to upgrade the character of his discharge to a general discharge (under honorable conditions).  However, the ADRB determined that the narrative reason for his discharge was proper and voted not to change it.

7.  Accordingly, the applicant was issued a new DD Form 214 to reflect his discharge under honorable conditions due to a court-martial.  He was again issued an RE Code of “4.” 

8.  Title 10, United States Code, section 1552, the authority under which this Board acts, provides, in pertinent part, that the Board 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. 

9.  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 covers eligibility criteria, policies, and procedures for enlistment processing into the Regular Army and the USAR.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of armed forces RE codes.

10.  RE-4 indicates that a person is not qualified for continued Army service by virtue of being separated from the service with a nonwaivable disqualification.  The applicable regulations direct that an RE Code of “4” be issued for an SPD of “JJD,” which indicates separation for “Court-Martial, Other.”

DISCUSSION AND CONCLUSIONS:

1.  Notwithstanding the action of the ADRB to upgrade the applicant’s BCD to a general discharge, the ADRB did not change the narrative reason for his discharge.  

2.  The applicant was issued an RE Code of “4” based on the narrative reason for his discharge, which was based on a court-martial conviction.  The applicant has failed to show through the evidence submitted and the evidence of record that his RE Code is incorrect or that there is sufficient reason to warrant a change of his RE Code.

3.  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.

4.  The type of discharge directed, the reasons therefore, and his RE Code appear to be appropriate considering the available facts of the case.
  
5.  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.    

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__PHM __  __KSJ__  __JGH__   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.




      ___        PHM                ___
                CHAIRPERSON
      


ABCMR Record of Proceedings (cont)                                         AR20080001276



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET, 2ND FLOOR
ARLINGTON, VA  22202-4508