IN THE CASE OF:	 

	BOARD DATE:	 

	DOCKET NUMBER:  AR20080007924 


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, in effect, that he be reinstated into the Army, his pay grade of E-4 be restored and that his RE (Reentry) Code be changed from a "4" to a "1" for the purposes of reenlistment only.

2.  The applicant states, in effect, that he enlisted in the Army with a goal in mind of having a long lasting career.  After entering active duty and going against everyone's better judgment he married a young girl.

3.  Both the applicant and the girl were too young and immature.  He knew it was going to be a tough journey for them to be compatible and she realized the Army was where his heart was.  He tried to explain that since he was new in the Army, they would not enjoy the same benefits as his father, an officer.

4.  They fought on a regular basis and she showed up at his unit on many occasions causing a lot of drama.  One thing led to another and the applicant had enough.  He asked her to pack her things and go back to her parents.  She refused to leave.  This, he states, went on, it seemed, all day until he had enough.  Without thinking, he physically forced her out of the house along with her personal effects.  He realizes now it was not a good decision and that is what led to his being discharged.

5.  The applicant states, in effect, he did not strike his wife, but he did push her.  He admitted that then and never tried to deny it.  Later, when his wife found out 

the Army was going to separate him, she took a stand and stated there was no need that he had agreed to a divorce and she would be leaving post.  But a young, eager, Judge Advocate General (JAG) Corps captain said that whether she filed charges or not, the Army was going to file charges.  He was advised by his JAG representative that since he had admitted to the physical push and based on his admission alone, their agenda was set.  There was nothing that could be done.

6.  His JAG representative assured him that in 24 months he could reenlist into active duty. It has now been 10 years and he has not given up yet.  He has no one to blame except for himself for his mistake.  After 10 years, he feels he has done his time.  He states, in effect, that he has matured so much over the years and could only be an asset to the Army.  He asks the Board to give him an opportunity to carry on where he left off.  He concludes by saying that with all that is going on, the Army needs a Soldier like him in the Army.

7.  In support of his request, the applicant provided a copy of his DD Form 214, Certificate of Release or Discharge from Active Duty and a copy of his old Army identification card.

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 request was submitted for action through his Member of Congress (MOC).  The applicant's MOC has asked the Board to review the matter and grant the applicant all due and appropriate consideration.

3.  The applicant's records show he enlisted in the US Army Reserve on 21 July 1993.  On 28 September 1993, he enlisted in the Regular Army in the rank and 

pay grade of Private First Class, E-3.  He successfully completed basic combat at Fort Sill, Oklahoma, and advanced individual training at Fort Gordon, Georgia, and was awarded the military occupational specialty 31U, Signal System Support Specialist.

4.  The applicant’s record shows he was advanced to the rank and pay grade, Specialist Four, E-4, on 1 December 1994.  His record shows this was the highest rank and pay grade he held on active duty.  The record also does not contain any indication of documented acts of valor, achievement, or service warranting special recognition.

5.  On 6 July 1995, the applicant pled guilty at a special court-martial to assault consummated by a battery, wrongfully threatening to kill his wife and children, and reckless driving and endangering motorists and police, while fleeing from military police in pursuit, all on 4 June 1995.  The applicant was sentenced to be confined for four months and to be discharged with a bad conduct discharge.  The sentence was approved; and, except for the part of the sentence extending to the bad conduct discharge, it was ordered executed on 26 September 1995.

6.  On 8 September 1995, the applicant's command notified him a request had been submitted to place him on involuntary excess leave pending appellate review.  The request was approved on 26 September 1995 and he was placed on involuntary excess leave with an effective date of 3 October 1995.

7.  Item 18 (Appointments and Reductions), of the applicant's DA Form 2-1, Personnel Qualification Record, Part II, shows the applicant was reduced to the rank and pay grade of Specialist Four, E-1, on 26 September 1995, the date the applicant's sentence was approved for execution.

8.  Item 21 (Time Lost), of the applicant's DA Form 2-1, shows the applicant was placed in and served in military confinement for the period 7 June 1995 through 7 September 1995.

9.  On 16 November 1995, the United States Army Court of Criminal Appeals, on consideration of the entire record, found the findings of guilty and the sentence as approved by the convening authority correct in law and fact; accordingly, the findings of guilty and the sentence were affirmed.

10.  On 8 April 1996, Special Court-Martial Order Number 16 was published by Headquarters, US Army Armor Center and Fort Knox, Kentucky, and announced 

that the sentence to confinement for four months and a bad conduct discharge had been finally affirmed; and, Article 71(c) having been complied with, the bad conduct discharge was ordered executed.  That portion of the sentence extending to confinement had been served.

11.  The applicant was discharged, on 12 June 1996, with a bad conduct discharge. Item 4a (Grade, Rate or Rank) and 4b (Pay Grade) show the applicant's rank and pay grade to be Private, E-1, respectively.  The authority for his discharge is Army Regulation 635-200, chapter 3, section IV.  The narrative reason for his separation as shown on his DD Form 214, is "Court-Martial, Other."  The separation code is "JJD" and the RE Code applied to his DD Form 214 is "4."  On the date of his discharge, the applicant had completed 2 years, 3 months, and 14 days active service and he had time lost for the period 7 June 1995 through 7 September 1995 due to his confinement by military authorities.

12.  AR 635-5-1, in effect at that time, prescribed the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons.  The regulation shows that the SPD "JJD", as shown on the applicant's DD Form 214, is appropriate for discharge when the narrative reason for discharge is "Court Martial, Other."  The authority for discharge under this SPD is "Army Regulation 635-200, chapter 3, section IV."

13.  Pertinent Army regulations provide that prior to discharge or release from active duty, individuals will be assigned reentry 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 Regular Army (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 reentry codes, including RA RE codes.

	a.  RE–4 applies to persons not qualified for continued service because they were separated from the service with a non-waivable disqualification such as conviction and sentence of a court martial.

	b.  RE-3 applies to persons not qualified for continued Army service and personnel who are discharged, but the disqualification is waivable.

	c.  RE-2 applies to Soldiers being separated before completing a contract period of service whose reenlistment is not contemplated.

	d.  RE-1 applies to persons completing their term of service (ETS) who are considered qualified to reenter the Army, so long as all other qualifications are met.

14.  The SPD/RE Code Cross Reference Table, dated October 1999, provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers separated for cause.  It also shows the SPD code with a corresponding RE code and states that more than one RE code could apply.  The Soldier’s file and other pertinent documents must be reviewed in order to make a final determination.  The SPD code of "JJD" has a corresponding RE code of "4."

15.  Article 58a of the Uniform Code of Military Justice specifies that unless otherwise provided in regulations to be prescribed by the Secretary concerned, a court-martial sentence of an enlisted member in pay grade above E-1, as approved by the convening authority, that includes a dishonorable discharge or bad conduct discharge; confinement; or hard labor without confinement; reduces that member to pay grade E-1, effective on the date of that approval.

16.  The Military Justice Act of 1983 (Public Law 98-209) provides, in pertinent part, that military correction boards may not disturb the finality of a conviction by court-martial.  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 change a discharge due to matters which should have been raised in the appellate process, rather it is only empowered to change the severity of the sentence imposed in the court-martial process 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.  In order to justify correction of a military record, the applicant must show, 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.

2.  The evidence shows the applicant was convicted, pursuant to his pleas, by a special court-martial of assault, consummated by a battery; wrongfully threatening to kill his wife and children; and reckless driving and endangering motorists and police while fleeing from military police in pursuit, all violations taking place on 4 June 1995.  He was sentenced to four months in confinement and to be discharged with a bad conduct discharge.
3.  The evidence shows the record of the applicant's trial was submitted to the United States Army Court of Criminal Appeals for review.  The United States Army Court of Criminal Appeals, on consideration of the entire record, found the findings of guilty and the sentence as approved by the convening authority correct in law and fact and affirmed the sentence.

4.  The applicant was discharged with a bad conduct discharge.  Based on pleas he entered to the charges and specifications, the review of the sentence by the United States Army Court of Criminal Appeals and the order by the convening authority that the sentence be executed, the applicant is not entitled to reinstatement in the Army.

5.  As indicated above, and based on the evidence, the applicant was discharged with a bad conduct discharge as a result of trial by a special court-martial.  As such, his DD Form 214 was coded, "JJD," in item 26 (Separation Code), "4," in Item 27 (Reentry Code), and "Court-Martial, Other" was entered in Item 28 (Narrative Reason for Separation).  These items correspond one to the other and a change to one cannot be made without changing the others.

6.  The SPD/RE Code Cross Reference Table establishes the proper separation code to assign to individuals being separating from the Army as a result of court-martial.  This separation code is "JJD."  The corresponding reentry code is "4."  Because the applicant was discharged as the result of court-martial, he is not entitled to a change in his reentry code from "4" to a "1."

7.  The evidence shows that the applicant was reduced from pay grade E-4 to pay grade E-1 when the court-martial convening authority approved execution of the sentence and as a result of operation of law.  Based on the facts and circumstances relate to the applicant's court-martial, he is not entitled to the restoration of his pay grade to E-4.

8.  In view of the foregoing, there is no basis for granting the applicant's request for his reinstatement into the Army, restoration of his pay grade of E-4, and a change of his RE (Reentry) Code from a "4" to a "1" for any purpose.

9.  The applicant has failed to produce evidence sufficient to warrant a change to his RE Code and his reinstatement as a matter of equity.


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.




       _   ____x___   ___
       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)                                         AR20080007924





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ABCMR Record of Proceedings (cont)                                         AR20080007924



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