IN THE CASE OF:	  

		BOARD DATE:	        28 August 2008

		DOCKET NUMBER:  AR20080006842 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests an upgrade of his bad conduct discharge to an honorable discharge. 

2.  The applicant states that his bad conduct discharge led to a reenlistment eligibility (RE) code of “3” which means he cannot reenter the Army.

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 Kansas Army National Guard (KSARNG) on 26 January 1988.  He subsequently entered active duty for training (ADT), completed basic combat and advanced individual training, and was awarded military occupational specialty (MOS) 88M (Motor Transportation Operator).  He was honorably relieved from ADT on 7 May 1988.

3.  The applicant’s records further show he enlisted in the Regular Army for a period of 4 years on 30 November 1988.  He was initially assigned to Fort Lewis, Washington, and was subsequently assigned to Germany.  The highest rank and grade he attained during his military service was private first class (PFC)/E-3.

4.  The applicant’s awards and decorations include the Army Service Ribbon and the National Defense Service Medal.  His records do not show any achievements or significant acts of distinction during his military service.

5.  On 24 January 1992, the applicant appeared before a General Court-Martial in Heilbronn, Germany and pled guilty to charge I, one specification of disrespecting a noncommissioned officer, on or about 14 November 1991, and one specification of willfully disobeying a lawful order, on or about 14 November 1991, and charge II, two specifications of committing an indecent act upon the body of a child under the age of 16, on or about 1 December 1991.  The specifications reflected that the indecent acts were committed on two different children.  He also pled not guilty to an additional charge, one specification of committing an indecent act upon the body of an unnamed child under the age of 16, between 1 October 1991 and 31 October 1991.  

6.  The court found him guilty of all charges and specifications and sentenced him to confinement for 7 years, a forfeiture of all pay and allowances, reduction to private (PVT)/E-1, and a bad conduct discharge.  The sentence was adjudged on 24 January 1992.

7.  On 13 May 1992, the convening authority approved the applicant's sentence in part, and except for the bad conduct discharge, he ordered it executed.  Pursuant to a pretrial agreement, the execution of that part of the sentence adjudging confinement in excess of 24 months was suspended for 12 months.  He further ordered the record of trial be forwarded to The Judge Advocate General of the Army for review by the Army Court of Military Review.

8.  On an unknown date in 1993, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.



9.  Headquarters, U.S. Army Field Artillery Center and Fort Sill, Fort Sill, Oklahoma, General Court-Martial Order Number 79, dated 7 September 1993, shows that, after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant’s bad conduct discharge sentence executed. The Orders also noted that the portion of the sentence extending to confinement had been served.

10.  The applicant was discharged from the Army on 7 October 1993.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged in accordance with chapter 3 of Army Regulation    635-200 (Personnel Separations), as a result of court-martial.  This form further shows the applicant's character of service as bad conduct and that he completed 3 years, 4 months, and 19 days of creditable military service.  He also had 536 days of lost time due to confinement. 

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.  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.

13.  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.

14.  Army Regulation 635-200 states, in pertinent part, 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.  Table 3-1 included a list of the Regular Army Reenlistment Eligibility Codes (RE codes):

	a.  RE–1, applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army.  They are qualified for enlistment if all other criteria are met.

	b.  RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable.  They are ineligible unless a waiver is granted. 

	c.  RE-4 applies to Soldiers separated from last period of service with a nonwaivable disqualification.

DISCUSSION AND CONCLUSIONS:

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

2.  The applicant’s trial by a General 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.  The applicant’s discharge accurately reflects his military service at that time.

3.  After a 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, there is insufficient basis to upgrade the applicant's discharge to an honorable or a general discharge.

4.  The Army Board for Correction of Military Records (ABCMR) does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  The applicant is advised that if he desires to enlist, he should contact a local recruiter who can best advise him on his eligibility for returning to military service.  Those individuals can best advise a former service member as to the needs of the service at the time and may process enlistment waivers for the applicant’s RE Code. 






BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx___  __xxx___  __xxx___  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.



															XXX
      _______ _   _______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080006842



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080006842



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1