IN THE CASE OF:	  

		BOARD DATE:	       16 SEPTEMBER 2008

		DOCKET NUMBER:  AR20080009600 


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 his bad conduct discharge be upgraded to an honorable or general discharge, and that his reentry (RE) code be changed to an RE code that he can reenter the Service with. 

2.  The applicant essentially states that he went absent without leave (AWOL), but that he was not a deserter, and is attempting to rejoin the military.  He also states, in effect, that medical issues at the time were not known, and that his drug experimentation has been addressed.  He further states that his post-service behavior has been outstanding.  He continued by essentially stating that he was granted clemency at the Fort Knox, Kentucky Regional Confinement Facility (RCF), and was informed that because he was granted clemency to be released from incarceration, he should be granted clemency to change his 
RE code to something he can reenter the Service with.  He also states that his chain of command was not informed that his father was dying of cancer, which was the reason he was AWOL.  Additionally, he states that his discharge does not reflect his service because an example was made out of him, but that he is attempting to reenter the Service and make things right.  He also requests clemency from the Army Board for Correction of Military Records (ABCMR).

3.  Although the applicant essentially stated that religious and medical documents and statements from other Soldiers would be submitted, the applicant only provided a monthly progress assessment, dated 26 February 2008, from a substance abuse treatment center in support of this application.


CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show that he enlisted in the United States Army Reserve Delayed Entry Program on 24 August 2001, and entered active duty in the Regular Army on 17 September 2001.  He completed initial entry training and was awarded military occupational specialty 13B (Cannon Crewmember).  He was then reassigned to Fort Riley, Kansas in March 2002 for his initial permanent duty assignment.

2.  On 9 August 2005, the applicant was convicted by a general court-martial for:

	a.  absenting himself without authority from his unit on or about 27 January 2004, and remaining so absent until on or about 25 March 2004;

	b.  absenting himself without authority from his unit on or about 31 March 2004, and remaining so absent until on or about 26 July 2004;

	c.  absenting himself without authority from his unit on or about 28 July 2004, and remaining so absent until on or about 24 June 2005;

	d.  two counts of wrongfully using marijuana; and

	e.  one count of wrongfully using cocaine.

3.  The applicant was sentenced to confinement for 15 months, forfeiture of all pay and allowances, and to be discharged from the Service with a bad conduct discharge.  Already in pre-trial confinement since 24 June 2005, he was placed in regular confinement on 9 August 2005.  On 14 September 2005, the applicant's sentence was approved and, except for the part of the sentence extending to a bad conduct discharge, was ordered to be executed.  He was then reassigned to Fort Knox, Kentucky to serve his confinement at the Fort Knox RCF.  The applicant's record of trial was also forwarded for appellate review. 

4.  On 31 October 2005, the United States Army Court of Criminal Appeals affirmed the findings of guilty against the applicant and his sentence.  

5.  Headquarters, United States Army Armor Center and Fort Knox, Fort Knox, Kentucky General Court-Martial Order Number 55, dated 16 February 2006, essentially shows that the applicant's sentence to a bad conduct discharge, confinement for 15 months, and forfeiture of all pay and allowances had been affirmed, and that the applicant was credited with 46 days of confinement against his sentence to confinement.  This order also stated that as Article 71(c) had been complied with, the applicant's bad conduct discharge would be executed.  
6.  On 22 March 2006, the applicant was discharged pursuant to a duly reviewed and affirmed court-martial order.  Item 24 (Character of Service) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that he received a bad conduct discharge.  Item 28 (Narrative Reason for Separation) of this same document has an entry of "Court-Martial, Other."  Item 26 (Separation Code) of this document shows that he was assigned a separation program designator (SPD) code of "JJD," and item 27 (Reentry Code) of this document has an entry of "4."

7.  The applicant essentially stated that he went AWOL, but that he was not a deserter, and is attempting to rejoin the military.  He also stated, in effect, that medical issues at the time were not known, and that his drug experimentation has been addressed.  He further stated that his post-service behavior has been outstanding.  He continued by essentially stating that he was granted clemency at the Fort Knox, Kentucky RCF, and was informed that because he was granted clemency to be released from incarceration, he should be granted clemency to change his RE code to something he can reenter the Service with.  He also stated that his chain of command was not informed that his father was dying of cancer, which was the reason he was AWOL.  Additionally, he stated that his discharge does not reflect his service because an example was made out of him, but that he is attempting to reenter the Service and make things right.  He also requested clemency from the ABCMR.

8.  Title 10, United States Code, section 1552, as amended does not permit any redress by this Board that would disturb the finality of a court-martial conviction.  The Board is empowered to address the punishment and/or the characterization of service resulting from a court-martial conviction.  The Board may elect to change the punishment and/or the characterization of service 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.  Paragraph 3-7a of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) 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.

10.  Paragraph 3-7b of the same regulation also 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 601-210 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies and procedures for enlistment and processing into the Regular Army and the United States Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of armed forces RE codes, including Regular Army RE codes.  RE codes 1 and 2 permit immediate reenlistment if all other criteria are met.  An RE code of 3 applies to persons not qualified for continued Army service, but the disqualification is waivable.  An RE code of 4 indicates separation from the last period of service with a disqualification which cannot be waived and ineligibility for reenlistment.  This regulation further provides that RE codes may only be changed if they are determined to be administratively incorrect. 

12.  Army Regulation 635-5-1 (Separation Program Designator 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. Additionally, Table 2-3 (SPD/RE Code Cross Reference Table) of Army Regulation 635-5-1 (Separation Documents) establishes RE Codes to be assigned for each SPD.  

13.  An SPD code of "JJD" applies to persons who are discharged by reason of a court-martial under the provisions of Chapter 3, Army Regulation 635-200.  The SPD/RE Code Cross Reference Table shows that an RE code of 4 is the applicable RE code assigned for individuals separated as a result of trial by court-martial.  An RE code of 4 indicates that the applicant was separated from his last period of service with a disqualification which cannot be waived and is ineligible for reenlistment.

14.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.





DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his bad conduct discharge should be upgraded to an honorable or general discharge, and that his RE code should be changed to an RE code that he can reenter the Service with. 

2.  The applicant's contention that he feels he was not a deserter was noted; however, he was not convicted of desertion.

3.  The applicant's contention that medical issues at the time were not known was also considered, but not found to have any merit.  The applicant's military records contained two DD Form 553 (Deserter/Absentee Wanted by the Armed Forces), and these documents essentially show that the applicant was referred for alcohol and drug dependency in June 2003, and that he had a history of prior drug use, alcohol dependency, and cannabis dependence.  The fact that he now states that his drug experimentation had been addressed is noteworthy; however, his prior drug and alcohol abuse does not excuse the applicant's offenses which led to his court-marital conviction.

4.  Additionally, the applicant's contention regarding his post-service conduct was considered.  However, good post-service conduct alone is not a basis for upgrading a discharge.  

5.  The applicant's contention that the reason for his periods of AWOL and desertion was because his father was dying of cancer was also noted, as was the fact that he states his chain of command was not informed of the fact that his father was dying of cancer.  However, there is no evidence in the applicant's military records, and more importantly, the applicant failed to provide any evidence which shows that his father was dying of cancer at the time, or that he ever sought assistance from his chain of command or any external agency such as the American Red Cross or the chaplain about any personal family problems he was having with his father's alleged illness

6.  The applicant’s entire record of service was considered; however, the fact that the applicant was tried and convicted by a general court-martial for multiple offensives of the Uniform Code of Military Justice shows that the applicant did not meet the standards of acceptable conduct and performance of duty for Army personnel.  The evidence of record shows that the applicant was discharged pursuant to a duly reviewed and affirmed general court-martial order, and there is no record or documentary evidence of acts of valor, achievement, or service that would warrant special recognition.  

7.  The fact that the applicant requested clemency from the ABCMR was also noted.  However, after a thorough review of the available records, there was no cause for clemency and an insufficient basis upon which to base an upgrade of the applicant’s bad conduct discharge to an honorable or general discharge.  In view of the foregoing, there is no basis for upgrading the applicant's discharge.

8.  The fact that the applicant wishes to have his RE code changed so that he may reenter the Service is commendable.  However, the applicant's RE code is based on his reason for discharge and cannot be changed unless the applicant's narrative reason for discharge is changed.  His narrative reason for discharge was based on his conviction by a court-martial, and there is insufficient basis upon which to change this reason.  In view of the foregoing, there is no basis for changing 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)                                         AR20080009600



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ABCMR Record of Proceedings (cont)                                         AR20080009600



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