IN THE CASE OF:	  

		BOARD DATE:	        18 DECEMBER 2008

		DOCKET NUMBER:  AR20080010270 


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 her bad conduct discharge be upgraded to an honorable or general discharge.  She also essentially requests that her reentry eligibility (RE) code be changed so that she may become eligible for benefits from the Department of Veterans Affairs (DVA).

2.  The applicant essentially does not believe that the record is unjust, but believes that she served on and off for 10 years, and that bad judgment on her part disgraced her unit, the Army, and her as a Soldier.  She also states, in effect, that she was an excellent Soldier up until the mistake that led to her bad conduct discharge.  She further states that she would like the opportunity to change how people look at her as a person.  She continued by stating that she made one mistake as a Soldier that she can never make up, but that she can change her life as she has demonstrated.  Additionally, she requests that her discharge be upgraded so she can at least get the medication she needs.

3.  The applicant provides her DD Form 214 (Certificate of Release or Discharge from Active Duty) that was issued at the time of her discharge on 31 August 2007, which will simply be referred to as her DD Form 214 throughout the remainder of these proceedings; an undated grade report with an handwritten note indicating that she is currently in her second semester at Bunker Hill Community College in Boston, Massachusetts; a Preliminary Evaluation of Transfer Credit document, dated 20 August 2007, from the aforementioned college; a Certificate of Completion, dated 25 October 2005, showing that she completed Small Business 101; a Certificate of Attendance which shows that she completed a Women's Trauma Group from 14 June 2006 to 23 August 2006; a Certificate of Training showing that she completed the Combat Lifesaver Course from 4 to 6 January 2005; a Certificate of Attendance which shows that she completed a Women's Stress and Anger Management Group from 19 September 2006 to 7 November 2006; a Certificate of Recognition, dated 23 February 2005, for supporting Task Force Liberty during Operation Iraqi Freedom III; a New York Times article, dated 22 February 2005, which in part mentioned the applicant; an article posted to an internet website, which was posted on 29 October 2004, which in part mentioned the applicant; two third-party letters, dated 7 and 10 April 2006; an undated letter from a colonel to the applicant; a statement of service, dated 3 January 2007; a memorandum for record, dated 14 April 2006, relating to restitution payments by the applicant to a staff sergeant (SSG) that she stole from; a Certificate of Release, effective 11 July 2007, from the Chairman of the Army Clemency and Parole Board; a letter, dated 12 July 2007, from the United States District Court Probation Office, District of New Jersey; results of a magnetic resonance imaging (MRI) performed on 27 May 2005; a Standard Form 513 (Medical Record – Consultation Sheet), dated 31 May 2005; a Radiologic Examination Report that was approved on 27 July 2005; a Standard Form 600 (Chronological Record of Medical Care), dated 16 August 2006; a document, authenticated on 2 June 2005, from the Lourdes Medical Center of Burlington County, Willingboro, New Jersey; and page 2 of 2 of a Physician Non-OR Procedure Summary, which appears to be dated 7 June 2005, from the aforementioned medical center in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show that she enlisted in the New York Army National Guard 25 August 2003 following prior service in the Regular Army from 29 July 1996 to 6 August 1997.  She deployed to Iraq and subsequently reenlisted in the Army National Guard on 10 January 2005.

2.  On 12 April 2006, the applicant was convicted by a general court-martial of:

	a.  wrongfully stealing certain mail matter on or about 12 June 2005, to wit:  a letter addressed to an SSG containing a debit card, the property of the SSG and/or a bank, which said letter was then in the applicant's custody as part of her official duties as a company mail clerk before said letter was delivered to the SSG;

	b.  wrongfully stealing certain mail matter on or about 17 June 2005, to wit:  a letter addressed to an SSG containing the personal identification number for a debit card, the property of the SSG and/or a bank, which said letter was then in the applicant's custody as part of her official duties as a company mail clerk before said letter was delivered to the SSG;

	c.  stealing $40.00 on or about 24 June 2005 at or near Cream Ridge, New Jersey, which was the property of an SSG and/or a bank, by making an unauthorized withdrawal of money from the bank account of an SSG from an automatic teller machine (ATM);

	d.  stealing $40.00 on or about 27 June 2005 at or near Sayreville, New Jersey, which was the property of an SSG and/or a bank, by making an unauthorized withdrawal of money from the bank account of an SSG from an ATM;

	e.  stealing $100.00 on or about 30 June 2005 at or near Wall Township, New Jersey, which was the property of an SSG and/or a bank, by making an unauthorized withdrawal of money from the bank account of an SSG from an ATM;

	f.  stealing $140.00 on or about 23 July 2005 at or near Hazlet, New Jersey, which was the property of an SSG and/or a bank, by making an unauthorized withdrawal of money from the bank account of an SSG from an ATM;

	g.  stealing $40.00 on or about 23 July 2005 at or near Cream Ridge, New Jersey, which was the property of an SSG and/or a bank, by making an unauthorized withdrawal of money from the bank account of an SSG from an ATM;

	h.  stealing $100.00 on or about 23 July 2005 at or near McGuire Air Force Base, New Jersey, which was the property of an SSG and/or a bank, by making an unauthorized withdrawal of money from the bank account of an SSG from an ATM;

	i.  stealing $100.00 on or about 24 July 2005 at or near Holmdel, New Jersey, which was the property of an SSG and/or a bank, by making an unauthorized withdrawal of money from the bank account of an SSG from an ATM;

	j.  stealing $160.00 on or about 26 July 2005 at or near Hazlet, New Jersey, which was the property of an SSG and/or a bank, by making an unauthorized withdrawal of money from the bank account of an SSG from an ATM;

	k.  stealing $60.00 on or about 28 July 2005 at or near Willingboro, New Jersey, which was the property of an SSG and/or a bank, by making an unauthorized withdrawal of money from the bank account of an SSG from an ATM;

	l.  stealing $200.00 on or about 28 July 2005 at or near Matawan, New Jersey, which was the property of an SSG and/or a bank, by making an unauthorized withdrawal of money from the bank account of an SSG from an ATM;

	m.  stealing $200.00 on or about 29 July 2005 at or near Middletown, New Jersey, which was the property of an SSG and/or a bank, by making an unauthorized withdrawal of money from the bank account of an SSG from an ATM;

	n.  stealing $260.00 on or about 30 July 2005 at or near McGuire Air Force Base, New Jersey, which was the property of an SSG and/or a bank, by making an unauthorized withdrawal of money from the bank account of an SSG from an ATM;

	o.  stealing $300.00 on or about 31 July 2005 at or near Jackson, New Jersey, which was the property of an SSG and/or a bank, by making an unauthorized withdrawal of money from the bank account of an SSG from an ATM;

	p.  stealing $300.00 on or about 1 August 2005 at or near McGuire Air Force Base, New Jersey, which was the property of an SSG and/or a bank, by making an unauthorized withdrawal of money from the bank account of an SSG from an ATM;

	q.  attempting to steal $400.00 [see Notice of Court-Martial Correction, dated 28 February 2007] on or about 1 August 2005 at or near McGuire Air Force Base, New Jersey, by attempting to make an unauthorized withdrawal of money from the bank account of an SSG from an ATM;

	r.  attempting to steal $300.00 on or about 2 August 2005 at or near Fort Dix, New Jersey, by attempting to make an unauthorized withdrawal of money from the bank account of an SSG from an ATM;

	s.  with intent to deceive, making to a Department of Defense police investigator an official statement, to wit:  a sworn statement which was false on or about 16 August 2005;

	t.  dishonorably failing to pay a debt to Army Emergency Relief from on or about 9 June 2005 to on or about 2 February 2006 in the sum of $2,500.00 for a loan made to her in the same amount on 13 August 2004, which amount became due and payable in 18 monthly installments of $138.88 commencing on or about 1 September 2004; and

	u.  dishonorably failing to pay a debt to Army Emergency Relief from on or about 9 June 2005 to on or about 2 February 2006 in the sum of $500.00 for a loan made to her in the same amount on 18 August 2004, which amount became due and payable in 10 monthly installments of $50.00 commencing on or about 1 September 2004.

3.  The applicant was sentenced to a reduction in rank and pay grade from specialist/E-4 to private/E-1, forfeiture of all pay and allowances, confinement for 2 years and 2 months, and to be discharged from the Army with a bad conduct discharge.  However, only so much of the applicant's sentence that provided for reduction in rank and pay grade from specialist/E-4 to private/E-1, forfeiture of all pay and allowances, confinement for 15 months, and a bad conduct discharge was approved and ordered to be executed.

4.  On 11 July 2007, the applicant was released from confinement and placed on excess leave on 12 July 2007 pending appellate review of her case.

5.  Headquarters, United States Army Field Artillery Center and Fort Sill, Fort Sill, Oklahoma, General Court-Martial Order Number 207.12, dated 20 July 2007, essentially shows that the applicant's sentence to reduction to private/E-1, forfeiture of all pay and allowances, confinement for 15 months, and a bad conduct discharge had been affirmed, and that the portion of her sentence extending to confinement had been served.  This order also stated that as Article 71(c) had been complied with, the applicant's bad conduct discharge would be executed.

6.  On 31 August 2007, the applicant was discharged pursuant to a duly reviewed and affirmed court-martial order.  Item 24 (Character of Service) of her DD Form 214 shows that she 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 she 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 provided a certificate of recognition which essentially shows that she served in support of Operation Iraqi Freedom.  She also provided evidence which shows that she completed training before her court-martial conviction and also while she was incarcerated, and evidence that she completed a college course after her discharge.  She further provided two news articles which specifically mentioned her by name and medical documents showing that she sought treatment for post-traumatic stress disorder and anorexia while she was incarcerated.

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.

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, the SPD/RE Code Cross Reference Table 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 her last period of service with a disqualification which cannot be waived and is ineligible for reenlistment.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her bad conduct discharge should be upgraded to an honorable or general discharge.  She also essentially requested that her RE code be changed so that she may become eligible for benefits from the DVA.

2.  The fact that the applicant requested that her RE code be changed so that she may become eligible for benefits from the DVA was noted.  However, the Army Board for Correction of Military Records does not grant requests solely for the purpose of making an applicant eligible for benefits.

3.  The applicant's contention that she made just one mistake which ultimately led to her discharge was considered, but not found to have any merit.  Although she was only convicted by one court-martial, the applicant committed 21 separate and distinct offenses between on or about 12 June 2005 and on or about 2 February 2006, which could hardly be categorized as just one mistake.

4.  The applicant’s entire record of service, which included service in support of Operation Iraqi Freedom, was considered.  However, the fact that the applicant was tried and convicted by a general court-martial for multiple offenses 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.

5.  The applicant's RE code is based on her reason for discharge and cannot be changed unless the applicant's narrative reason for discharge is changed.  Her narrative reason for discharge was based on her conviction by a court-martial and there is insufficient basis upon which to change this reason.

6.  In view of the foregoing, there is no basis for upgrading her bad conduct discharge or changing her RE code.

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.




      __________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)                                         AR20080010270



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ABCMR Record of Proceedings (cont)                                         AR20080010270



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