IN THE CASE OF:	  

		BOARD DATE:	        9 December 2008

		DOCKET NUMBER:  AR20080014364 


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 be upgraded to a general discharge and that his reentry (RE) code be changed. 

2.  The applicant states that he would like to continue his military career but he has an RE code of 4 which will not allow him in the military.  He contends that the situation he found himself in happened over 8 years ago, that he had never been in trouble before and has not since, and that he admits he made a bad decision but it was not directed against the military.

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 16 September 1987.  He trained as a wheeled vehicle mechanic, attained the rank of staff sergeant, and he remained on active duty through continuous reenlistments. 

2.  General Court-Martial Order Number 38, dated 24 November 2004, shows that on 26 April 2004, in accordance with his pleas, the applicant was convicted by a general court-martial of conspiring to commit larceny of U.S. currency and in order to effect the object of the conspiracy the applicant made a false military identification card for an individual and provided the individual with an Army uniform and the individual uttered falsely made checks, two specifications of making false official statements to a Federal Bureau of Investigation agent, and larceny of U.S. currency ($46,500).  He was sentenced to be reduced to E-1, to pay a fine of $5,000, confinement for 4 years, and to be discharged with a dishonorable discharge.  On 24 November 2004, the convening authority approved only so much of the sentence as provided for reduction to E-1, confinement for 4 years, a fine of $5000, and a bad conduct discharge.  The convening authority also suspended confinement in excess of 15 months for 
15 months. 

3.  On 29 June 2006, the action of the convening authority set forth in General Court-Martial Order Number 38, dated 24 November 2004, was set aside by the U.S. Army Court of Criminal Appeals and the record of trial was returned for remand for a new review.  

4.  On 29 September 2006, the convening authority approved only so much of the sentence as provided for reduction to E-1, confinement for 4 years, and a bad conduct discharge.  The convening authority disapproved the $5000 fine and suspended confinement in excess of 15 months for 15 months. 

5.  On 22 December 2006, the U.S. Army Court of Criminal Appeals affirmed the findings of guilty and the sentence.  On 4 May 2007, the convening authority ordered the bad conduct discharge to be executed.

6.  Accordingly, the applicant was discharged with a bad conduct discharge on 
12 October 2007 under the provisions of Army Regulation 635-200, chapter 3, for court-martial.  He had served 19 years, 1 month, and 29 days of total active service with 332 days of lost time due to being in confinement.  

7.  Item 25 (Separation Authority) on the applicant's DD Form 214 shows the entry, "AR [Army Regulation] 635-200, CHAP [chapter] 3."  Item 26 (Separation Code) on his DD Form 214 shows the entry, "JJD."  Item 27 (Reentry Code) on his DD Form 214 shows the entry, "4."  Item 28 (Narrative Reason for Separation) on his DD Form 214 shows the entry, "COURT-MARTIAL, OTHER.”

8.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Chapter 3 of this regulation states 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 affirmed sentence ordered duly executed. 

9.  Army Regulation 635-200, paragraph 3-7b, 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.

10.  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 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.

11.  Army Regulation 635-5-1 (Separation Program Designator Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons.  The regulation states the reason for discharge based on separation code “JJD” is “Court-Martial, Other” and the regulatory authority is Army Regulation 635-200, chapter 3.  

12.  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 U.S. 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.

13.  RE-4 applies to persons separated from their last period of service with a non-waivable disqualification.  

14.  RE-3 applies to persons who are not considered fully qualified for reentry or continuous service at the time of separation, but the disqualification is waivable.

15.  RE-1 applies to persons completing an initial term of active service who were fully qualified when last separated.

16.  The Separation Program Designator Code/Reentry Code Cross Reference Table, dated 15 June 2006, shows that when the SPD [Separation Program Designator] is "JJD" then an RE code of 4 will be given.  


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 applicant's record of service included one general court-martial conviction and 332 days of lost time.  As a result, his record of service was not satisfactory. Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge.

3.  The applicant’s RE code was administratively correct and in conformance with applicable regulations at the time of his separation.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___XX_____  __XX______  ____XX____  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)                                         AR20080014364



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ABCMR Record of Proceedings (cont)                                         AR20080014364



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