IN THE CASE OF:
BOARD DATE: 18 November 2008
DOCKET NUMBER: AR20080012133
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 reentry eligibility code of RE-4 be changed to RE-3.
2. The applicant states, in effect, that given the nature of the offense committed, the disposition was unjust and extreme. He relates that he made a mistake while in the Army but took responsibility like a noncommissioned officer (NCO) should. He has learned from the punishment he received. He believes "As leaders we all make mistakes, Some worse than others but still mistakes, that doesnt (sic) mean we cant (sic) still be great soldiers
." He believes that he has been rehabilitated and he can be a great Soldier if given a chance. He has become a certified emergency medical technician (EMT) and has taken mine safety courses.
3. The applicant provides a letter of support from an Army recruiter and two civilian certificates of training and/or qualification. He also submits four statements that were apparently offered for the court-martial convening authority's consideration.
CONSIDERATION OF EVIDENCE:
1. The applicant, a staff sergeant with approximately 5 years and 10 months of active duty service, was convicted by a special court martial on 4 November 2004.
2. The applicant pled guilty of violating Article 92 of the Uniform Code of Military Justice (UCMJ) by failing to obey a lawful general regulation by having sexual intercourse with a female private on 4 July 2004; by violating Article 107 of the UCMJ, on 2 August 2004, by making a false official statement denying that he spent time alone with the female private and that he had sex with her; and by violating Article 134 of the UCMJ by committing adultery by having sexual intercourse with a female private.
3. The adjudged sentence, which included reduction to private (E-1), confinement for 3 months, and a bad conduct discharge, was approved by the convening authority and affirmed upon review.
4. The applicant was separated, on 7 July 2007, with a bad conduct discharge. He was issued a separation program designator (SPD) code of JJD and an RE code of 4.
5. Army Regulation 635-5-1 prescribes the specific authorities, reasons for separating Soldiers from active duty and the SPD codes to be entered on the
DD Form 214. A SPD code of JDD is assigned when a Soldier receives a sentence by a court-martial.
6. Army Regulation 601-210 prescribes eligibility criteria governing the enlistment of persons, with or without prior service, into the Regular Army and the U.S. Army Reserve. It provides 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. An RE code of RE-4 applies to a person separated from the last period of service with a non-waivable disqualification.
7. The applicant's current supporter, an Army recruiter, reports that the applicant
has been working with the Recruiting Station for two months. He thinks the applicant's punishment was unjust, that the applicant has made significant rehabilitation, and that the discharge should be upgraded.
8. The training certificate submitted by the applicant indicates that the:
a. State of Utah has authorized the applicant to act as an "Underground Fire Boss"; and
b. State of Utah has certified the applicant as an Emergency Medical Technician.
9. The statements that were prepared for the convening authority's consideration after the applicant was sentenced include signed documents from
a first sergeant and a first lieutenant and unsigned statements from a first lieutenant and a staff sergeant. All of them praised the applicants abilities as a Soldier and a leader and supported his retention in the Army.
DISCUSSION AND CONCLUSIONS:
1. The applicant did not make a mistake, he committed three serious offenses.
2. Trial by court-martial was warranted by the gravity of the offenses charged. Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.
3. In view of the circumstances in this case, the assigned RE code was and still is appropriate.
4. The applicant's submissions and the input of his supporters have been carefully considered, but the outcome of this case was appropriate based on his misconduct.
5. There appears to be no basis for removal or waiver of the disqualification which established the basis for the RE code.
6. 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 the aforementioned requirement.
7. In view of the foregoing, there appears to be no basis for granting the applicants request.
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.
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