IN THE CASE OF:	  

		BOARD DATE:	  	   7 October 2008

		DOCKET NUMBER:  AR20080012075 


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 Reentry (RE) Code be changed from "RE-4" so he can reenter the Service.

2.  The applicant states, in effect, that his original bad conduct discharge was upgraded to a general discharge under honorable conditions.  He also states that he realizes his mistakes and would like the opportunity to serve his country as a man and not as a child. 

3.  The applicant provides a copy of his separation document; a copy of Special Court-Martial Order Number 22, dated 27 December 1999; and a copy of Special Court-Martial Order Number 91, dated 26 November 2002, 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 record shows that he enlisted in the Regular Army and entered active duty on 4 June 1998.  He was trained in, awarded, and served in military occupational specialty (MOS) 52D (Power Generation Equipment Repairer), and the highest rank he attained while serving on active duty was private first class (PFC)/E-3.  

3.  Special Court-Martial Order Number 22, Headquarters, XVIII Airborne Corps, Fort Bragg, North Carolina, shows that on 3 December 1999, the applicant was convicted by a Special Court-Martial of two specifications of making false official statements on 27 July 1999 and 12 August 1999; one specification of falsely representing to the Red Cross that his father had died in order to receive a Red Cross message on 27 July 1999; and one specification of desertion from
20 August 1999 to 21 October 1999.  He was sentenced to be discharged from the service with a bad conduct discharge, confinement for 62 days, a forfeiture of $639.00 per month for 2 months, and to be reduced to private (E-1). 

4.  Special Court Martial Order Number 92, Headquarters, United States Armor Center, Fort Knox, Kentucky, dated 26 November 2002, affirmed the sentence as modified by the United States Army Court of Military Review and ordered the bad conduct discharge be executed.

5.  The applicant's initial DD Form 214 shows that he was discharged on 5 March 2003 under the provisions of chapter 3 of Army Regulation 635-200 (Personnel Separations), by reason of court-martial, with an RE-code of 4.  This form further shows the applicant's character of service as bad conduct.

6.  On 16 December 2005 the Army Discharge Review Board (ADRB) upgraded the applicant’s bad conduct discharge to a general discharge, under honorable conditions.  His DD Form 214 was reissued to reflect his upgraded character of service; however, the separation authority, separation code, reentry code, and narrative reason for separation remained unchanged.  

7.  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 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.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-11 provides that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the sentence affirmed before it can be duly executed.

9.  Pertinent Army regulations provide 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 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 RE codes, including RA RE codes.  RE-4 applies to persons who are permanently disqualified for continued Army service.

10.  Army Regulation (AR) 635-5-1 (SPD 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.  The SPD code of JJD is the appropriate code to assign Soldiers separated under the provisions Army Regulation 635-200, chapter 3, by reason of court-martial.  The SPD/RE Codes Cross-Reference Table also shows that the corresponding RE Code for SPD Code JJD is RE-4.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions were carefully considered.  However, by regulation, the RE-4 code assigned to the applicant was the proper code to assign members separating under the provisions of Army Regulation 635-200, Chapter 3 (court-martial).  The applicant’s record shows that he violated the Army’s policy of making false statements and desertion, which compromised the trust and confidence placed in a Soldier.  Therefore, there is no evidence nor has the applicant presented any evidence to warrant relief.  As a result, the RE-4 code and the narrative reason for separation were and still are appropriate.  

2.  Notwithstanding the ADRB's decision to upgrade his discharge, it is clear that the applicant was charged with making false statements and desertion.  The applicant’s conduct was inconsistent with the Army’s standards for acceptable 
personal conduct and his overall quality of service was not so meritorious as to warrant a change in his reentry code.  Therefore, there is no evidence nor has the applicant presented any evidence to warranted relief beyond that already provided by the ADRB.

3.  RE-4 applies to persons who are permanently disqualified for continued Army service.

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, 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.

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)                                         AR20080012075



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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