IN THE CASE OF:	  

		BOARD DATE:	        09 SEPTEMBER 2008

		DOCKET NUMBER:  AR20080010214 


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 that his records be corrected by upgrading his reentry code (RE Code) from RE-4 to RE-1.

2.  The applicant states that his character of service was upgraded to a general discharge and he now would like his RE code also upgraded in order to reenlist and finish his full term of service. 

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 he enlisted in the Regular Army for a period of 2 years and 20 weeks on 4 September 1990.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 88M (Motor Transport Operator).  The highest rank/grade he attained during his military service was specialist (SPC)/E-4.

3.  The applicant’s records further show he was awarded the National Defense Service Medal, the Southwest Asia Service Medal with one bronze service star, the Army Service Ribbon, the Expert Marksmanship Qualification Badge with Grenade Bar, and the Marksman Marksmanship Qualification Badge with Rifle Bar.  His records do not show any significant acts of valor during his military service.

4.  On 16 December 1992, at a Special Court-Martial, the applicant pled:

     a.  Not Guilty to one specification of communicating a threat towards his commander, on or about 16 November 1992; and

     b.  Guilty to one specification of operating a vehicle while drunk, on or about 9 October 1992; one specification of assaulting another person, on or about 8 October 1992; one specification of assaulting another Soldier with a wooden board, 2 inches by 4 inches, on or about 8 October 1992; one specification of committing an assault upon a female by grabbing her, touching her, and holding her wrists together, on or about 8 October 1992; and one specification of being absent without leave (AWOL) during the period on or about 17 November 1992 through on or about 20 November 1992.  

5.  The Court found him guilty in accordance with is pleas and sentenced him to reduction to private (PVT)/E-1, forfeiture of $494.00 pay per month for 4 months, confinement for 5 months, and a bad conduct discharge.

6.  On 3 February 1993, the convening authority approved only so much of the sentence as provided for reduction to PVT/E-1, confinement for 4 months, forfeiture of $494.00 pay per month for 4 months, and a bad conduct discharge, and except for the bad conduct discharge, he ordered the sentence executed.

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

8.  Headquarters, U.S. Army Air Defense Artillery Center and Fort Bliss, Fort Bliss, Texas, Special Court-Martial Order Number 12, dated 10 November 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.

9.  The applicant was discharged from the Army on 4 May 1995.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time shows he was discharged in accordance with chapter 3 of Army Regulation (AR) 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 4 years, 6 months, and 21 days of creditable military service and had 81 days of lost time due to AWOL and/or confinement.  Item 27 (Reentry Code) of this DD Form 21 shows the entry “4.” 

10.  On 28 May 2004, the Army Discharge Review Board (ADRB) reviewed the applicant’s petition for an upgrade and found that clemency was warranted.  Accordingly, the ADRB voted to upgrade the applicant’s characterization of service to general, under honorable conditions.  

11.  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 (ABCMR) 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.

12.  AR 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.  AR 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.

13.  AR 635-5-1 (Separation Program Designator Codes) states that the Separation Program Designator (SPD) codes are three-character alphabetic combinations, which identify reasons for, and types of separation from active duty.  The primary purpose of SPD codes is to provide statistical accounting of reasons for separation.  They are intended exclusively for the internal use of DOD and the military services to assist in the collection and analysis of separation data.  The "JJD" SPD code is the correct code for Soldiers separating under chapter 3 of AR 635-200, as a result of court-martial.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his RE-4 should be changed to RE-1.

2.  The evidence of record confirms that the applicant’s Narrative Reason for Separation, Separation Code, and RE code were assigned based on the fact that he was discharged as a result of a court-martial.  The Separation Code of “JJD” and the RE code of 4 were the appropriate codes for the applicant based on the guidance provided in applicable regulation for Soldiers being discharged under the provisions of chapter 3 of AR 635-200.  Furthermore, the Separation and RE codes are consistent with the reason for his discharge.  Therefore, he received the appropriate RE code associated with his discharge.

3.  The ADRB considered the applicant's Narrative Reason for Separation when it directed its upgrade action and determined that it should not be changed because of the court-martial conviction which led directly to the applicant's discharge.  Although the ADRB directed that the applicant's discharge be upgraded, the underlying reason for his discharge was his court-martial.  Absent the court-martial conviction, there was no fundamental reason to discharge the applicant.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

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 RE-4 assigned to the applicant at the time of his discharge is correct.  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.  Therefore, he is not entitled to relief


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)                                         AR20080010214



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080010214



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1