IN THE CASE OF:	  

		BOARD DATE:	       18 NOVEMBER 2008

		DOCKET NUMBER:  AR20080014014 


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 (BCD) be upgraded and that he be issued a more favorable Reentry (RE) Code.

2.  The applicant states, “I received multiplication of charges, which by military law is not allowed.”  He also states, in effect, that his discharge should be upgraded because he completed his sentence and all of the required classes and that he has been a law abiding citizen since his release.  He goes on to state that he received promotions which show that he was a good Soldier and that he served in Iraq. 

3.  The applicant provides a copy of his DD Form 214 and a partial copy of his appeal. 

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in Salt Lake City, Utah on 3 October 2001 for a period of 4 years, training as a heavy construction equipment operator and assignment to Europe.  He completed his training and was transferred to Germany for his first and only duty assignment.

2.  On 10 March 2004, while serving in the pay grade of E-3, the applicant was convicted by a General Court-Martial of two specifications of indecent assault, and one specification of having wrongful intercourse with a woman not his wife.  He was sentenced to a reduction to the pay grade of E-1, to forfeit all pay and allowances, to be confined for 5 years and to be discharged from the Army with a BCD.  However, the convening authority approved only so much of the sentence as pertained to reduction to the pay grade of E-1, a forfeiture of all pay and allowances, confinement for 36 months and a BCD.

3.  On 31 October 2006, the United States Army Court of Criminal Appeals directed that the applicant's court-martial order be corrected to reflect the words "total forfeitures" in lieu of the words "to forfeit all pay and allowances."

4.  On 4 May 2007, General Court-Martial Order Number 122 was published which indicated that the applicant's sentence had been affirmed and directed that his BCD be executed.

5.  On 10 August 2007, the applicant was discharged pursuant to a duly reviewed and affirmed court-martial conviction.  He had served 3 years, 2 months, and 24 days of total active service and had approximately 953 days of lost time due to being in confinement.  He was issued a separation code of "JJD" and a RE Code of "4".

6.  Title 10, United States Code, section 1552, the authority under which this Board acts, provides, in pertinent part, that the Board 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.    

7.  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 processing into the Regular Army and the USAR.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of armed forces RE codes.

8.  RE-4 indicates that a person is not qualified for continued Army service by virtue of being separated from the service with a nonwaivable disqualification.  The applicable regulations direct that an RE Code of “4” be issued for an SPD of “JJD,” which indicates separation for “Court-Martial, Other.”

DISCUSSION AND CONCLUSIONS:

1.  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.

2.  The type of discharge directed and the reasons therefore appear to be appropriate considering the available facts of the case.

3.  The applicant’s contentions and supporting documents have been noted.  However, they are not sufficiently mitigating to warrant relief when compared to the seriousness of his offense.  

4.  The applicant violated the trust placed in him as a Soldier and as an ambassador of good will to a foreign nation in which he was a guest and a representative of the United States by engaging in misconduct of a most inexcusable and discreditable nature.  Accordingly, his service does not rise to the level of a discharge under honorable conditions.   

5.  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.



      _______ _   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)                                         AR20080014014



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ABCMR Record of Proceedings (cont)                                         AR20080014014



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