IN THE CASE OF:	  

		BOARD DATE:	        24 FEBRUARY 2009

		DOCKET NUMBER:  AR20080014570 


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 eligibility (RE) code shown on his DD Form 214 (Certificate of Release or Discharge from Active Duty) be upgraded or, in the alternative, that he be paid for the last year of his enlistment that he would have completed had he not been discharged.  He also essentially requests that his rank and pay grade of specialist (SPC)/E-4 be restored.

2.  The applicant essentially states his RE code should be upgraded and his rank and pay grade of SPC/E-4 restored due to the improper handling of his discharge.  He also contends that wrongful command influence played a part in the handling of his discharge.

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) and a self-authored letter, both dated 12 August 2008; a voided copy of his DD Form 214 that was issued to him on 12 July 1996; a revised copy of his DD Form 214 that was issued after the Army Discharge Review Board (ADRB) upgraded his characterization of service, separation authority, separation code, and narrative reason for his discharge; and pages 1 and 3 of the ADRB Case Report and Directive from his ADRB hearing in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military records show that he enlisted in the Regular Army on 29 April 1993 for a period of 5 years.  He completed basic and advanced individual training and was awarded military occupational specialty 91Q (Pharmacy Specialist).  He then departed for a tour in Belgium on 6 January 
1994.

2.  On 16 November 1995, the applicant was convicted by a general court-martial of conspiracy to commit assault and battery on or between 22 and 23 June 1995; wrongfully using marijuana between 7 March 1995 and 7 April 1995; wrongfully possessing approximately 37.5 grams of marijuana on diverse occasions between 1 January 1995 and 7 April 1995; wrongfully using marijuana on diverse occasions between 1 January 1995 and 7 April 1995; wrongfully introducing an unknown amount of marijuana onto the government quarters area known as Green Park, Mons, Belgium, on diverse occasions, which was an installation controlled by the Armed Forces; and adultery on or between 1 August 1994 and 1 April 1995.  He was sentenced to confinement for 9 months, forfeiture of $300.00 pay per month for 9 months, and reduction in rank and pay grade from SPC/E-4 to private/E-1.  He was placed in military confinement on that date and his sentence was subsequently approved and ordered duly executed.

3.  On or about 17 April 1996, the applicant's commanding officer informed him that he was initiating action to separate him from the service under the provisions of Army Regulation 635-200 (Enlisted Personnel), chapter 14 (Separation for Misconduct), paragraph 14-12c (Commission of a serious offense), for possessing, using, and introducing marijuana into the Supreme Headquarters, Allied Powers Europe community, attempting to commit assault, and for committing adultery.  He also recommended that the applicant receive a general discharge, but informed him that the separation authority was not bound by his recommendation as to his characterization of service, and that the separation authority could direct that his service be characterized as honorable, under honorable conditions, or under other than honorable conditions.  The applicant was also advised of his rights.

4.  On 20 May 1996, the applicant acknowledged that he had been advised by his consulting counsel of the basis for the contemplated action to separate him under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, and its effects; of the rights available to him; and the effect of any action taken by him in waiving his rights.  He also understood that if he had less than 6 years of total active and reserve military service at the time of separation and was being considered for separation under the provisions of chapter 14, Army Regulation 635-200, he was not entitled to have his case appear before an administrative separation board unless he was being considered for a discharge under other than honorable conditions.  He elected not to submit statements in his own behalf and waived counsel.  He also acknowledged that he understood that he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.

5.  On 6 June 1996, a mental status evaluation was conducted on the applicant and he was psychiatrically cleared for any administrative action deemed appropriate by his command.

6.  On 3 July 1996, the proper separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, and waived further rehabilitation attempts.  He also directed that the applicant be issued a General Discharge Certificate Under Honorable Conditions.

7.  On 12 July 1996, the applicant was discharged accordingly after completing 3 years, 2 months, and 14 days of active duty service with no prior active or reserve service.  Item 24 (Character of Service) of the DD Form 214 that was issued at the time of his discharge had an entry of "Under Honorable Conditions (General)," and item 25 (Separation Authority) had an entry of "AR 635-200, 
14-12c(2)."  Item 26 (Separation Code) of this document shows that he was assigned a separation program designator (SPD) code of "JKK," item 27 (Reentry Code) had an RE code of "4," and item 28 (Narrative Reason for Separation) had an entry of "Misconduct."

8.  In a letter, dated 7 March 2007, the ADRB informed the applicant that after review of his case, it was determined that relief was warranted in the form of an upgrade of his characterization of service to fully honorable and a change to the narrative reason for his separation to Secretarial Authority.  In the ADRB Case Report and Directive, it was essentially determined that the applicant's unit commander used "Board Procedures" when notifying him that action was being initiated to separate him under the provisions of chapter 14, Army Regulation 635-200, but that by using "Board Procedures," the authority for approval of the applicant's separation rested with the General Court-Martial Convening Authority (GCMCA).  The ADRB concluded that since someone other than the GCMCA approved the applicant's discharge, it was improper.

9.  Paragraph 2-1 of Army Regulation 635-5-1 (Separation Program Designator Codes) provides that SPD codes are three-character alphabetic combinations that identify reasons for and types of separation from active duty.  The primary purpose of SPD codes is to provide statistical accounting of reasons for separation.  They are intended exclusively for the internal use of the Department of Defense and the military services to assist in the collection and analysis of separation data.  The SPD code of "JKK" shown in item 26 of the applicant’s DD Form 214 that was issued at the time of his discharge identified that the applicant was discharged because of misconduct.  The SPD code of "JFF" shown in item 26 of the DD Form 214 that was issued after the ADRB upgraded his discharge and changed the narrative reason for his separation identified that he was discharged under Secretarial Authority.   Additionally, the SPD/RE Code Cross Reference Table establishes RE code 4 as the proper RE code to assign to Soldiers discharged because of misconduct.  This table also establishes that the RE code for Soldiers discharged under Secretarial Authority will be determined.

10.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) prescribes eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior-service applicants for enlistment and includes a list of Armed Forces RE Codes, including Regular Army RE codes.  RE 4 applies to persons separated from their last period of service with a nonwaivable disqualification.  They are ineligible for enlistment.  This regulation further provides that RE codes may only be changed if they are determined to be administratively incorrect. 

11.  Title 10, United States Code, section 1552, as amended, does not permit any redress by the Army Board for Correction of Military Records (ABCMR) which would disturb the finality of a court-martial conviction.  The ABCMR is empowered to address the punishment and/or the characterization of service resulting from a court-martial conviction.  The ABCMR 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.

12.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his RE code shown on his DD Form 214 should be upgraded or, in the alternative, that he be paid for the last year of his enlistment that he would have completed had he not been discharged.  He also contends that his rank and pay grade should be restored to specialist/E-4.

2.  The applicant's contention that wrongful command influence played a part in the handling of his discharge was considered, but not found to have merit.  The applicant provided no evidence to support this claim.

3.  The fact that the ADRB determined that the applicant's separation proceedings were improper was considered.  While the ADRB granted the applicant relief by upgrading his general discharge to a fully honorable discharge and changing his narrative reason for separation from misconduct to Secretarial Authority, he is not entitled to any additional relief.

4.  The applicant's RE code and SPD code are based on his narrative reason for discharge and cannot be changed unless the applicant's narrative reason for discharge is changed.  His narrative reason for discharge was changed by the ADRB from misconduct to Secretarial Authority; however, based upon the circumstances in this case, it would be appropriate to leave his RE code of 4 unchanged.

5.  The SPD/RE Cross Reference Table does not specify what RE code will be issued when SPD "JFF" is assigned based on Secretarial Authority.  However, based on the applicant's conviction by a general court-martial for conspiracy to commit assault and battery, wrongfully using marijuana, wrongfully possessing marijuana, wrongfully introducing marijuana onto an installation controlled by the Armed Forces, and adultery, it would be both proper and in the interest of the Armed Forces that his RE code remain a "4" so as to permanently bar him from reentering the Armed Forces.

6.  Current law does not permit any redress by the ABCMR which would disturb the finality of a court-martial conviction; however, the Board is empowered to address the punishment resulting from a court-martial conviction.  The applicant's reduction in rank was part of his sentence from his general court-martial conviction, and the ABCMR found no evidence to support moderating the severity of the punishment imposed on him.  As a result, there is no basis for restoring the applicant’s rank and pay grade to SPC/E-4.

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)                                         AR20080014570



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ABCMR Record of Proceedings (cont)                                         AR20080014570



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