IN THE CASE OF:	  

		BOARD DATE:	       16 December 2008

		DOCKET NUMBER:  AR20080014647 


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 (RE) code be changed from RE-4 to RE-3.

2.  The applicant states that it has been almost 10 years since his discharge and he would like to rejoin the Army and start over.  

3.  The applicant did not provide additional documentary evidence in support of this 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.  On 26 June 1996, the applicant enlisted in the U.S. Army Reserve Delayed Entry Program (DEP) for 8 years.  On 29 May 1997, he was discharged from the DEP and enlisted in the Regular Army for 3 years.  He completed training requirements and was awarded military occupational specialty 11B (Infantryman). 

3.  On 6 August 1999, the applicant pled guilty and was found guilty by general court-martial of two specifications of wrongfully raping P.L.B., one specification of committing sodomy with P.L.B. by force and without consent, unlawfully assaulting P.L.B. on diverse occasions, three specifications of wrongfully communicating a threat to kill P.L.B. on diverse occasions, and wrongfully kidnapping P.L.B.  He was sentenced to be discharged with a dishonorable discharge, confinement at hard labor for 4 years, and a dishonorable discharge.

4.  On 4 October 1999, the convening authority approved the sentence except for that portion of the sentence extending to a dishonorable discharge and ordered it executed, but the execution of that part of the sentence adjudging confinement in excess of 12 months was suspended for 12 months at which time, unless the suspension was sooner vacated, the suspended part of the sentence would be remitted without further action.  He was credited with 105 days of confinement against the sentence of confinement.

5.  On 11 January 2001, the convening authority issued General Court-Martial Order Number 5 which stated that the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.  The suspended part of the sentence was remitted without further action.  He was credited with 105 days of confinement against the sentence of confinement.  The portion of the sentence pertaining to confinement had been served and the provisions of Article 71c having been complied with, the dishonorable discharge was ordered to be executed.  On 20 April 2001, the applicant was separated with a dishonorable discharge.  He had completed 3 years, 4 months, and 29 days of creditable active service and had 168 days of lost time due to military confinement.  He was assigned a separation program designator (SPD) code of "JJD" and an RE code of RE-4.

6.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 3, section IV, establishes policy and procedures for separating members with a dishonorable or bad conduct discharge, and provides that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial, and that the appellate review must be completed and the affirmed sentence ordered duly executed.

7.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the Army Board for Correction of Military Records is not empowered to change a court-martial 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.

8.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies and procedures for enlistment and 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, including RA RE codes.  RE-1 and 2 permit immediate reenlistment if all other criteria are met.  RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable.  An RE code of 4 indicates separation from the last period of service with a disqualification which cannot be waived and ineligibility for reenlistment.

9.  Army Regulation 635-5 (Separation Documents) prescribes policies and procedures regarding separation documents (DD Form 214/215).  Items 25 (Separation Authority), 26 (SPD Code), and 28 (Narrative Reason for Separation) of the DD Form 214 are completed in accordance with Army Regulation 635-5.

10.  Army Regulation 635-5-1 (SPD Codes) provided 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 regulation in effect at the time of the applicant's discharge directed that "Chapter 3, Army Regulation 
635-200, court-martial, other" would be entered as the narrative reason with a corresponding SPD code of "JJD."

11.  Additionally, the SPD/RE Code Cross Reference Table) established RE codes to be assigned for each SPD.  A separation code of "JJD" applied to persons who were separated under the provisions of chapter 3 of Army Regulation 635-200.  The SPD/RE Code Cross Reference Table shows that an RE code of 4 is the applicable RE code assigned for individuals separated by reduction in forces.  An RE code of RE-4 means the applicant was separated from his last period of service with a disqualification which cannot be waived and he ineligible for reenlistment.

DISCUSSION AND CONCLUSIONS:

1.  The applicant pled guilty at court-martial to serious charges under the Uniform Code of Military Justice.  He was found guilty of all charges.  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 SPD and RE codes are based on an individual's reason for discharge and cannot be changed unless the narrative reason for discharge is changed.  The evidence in the official record fully supports his narrative reason for discharge as stated and there is no basis upon which to change his reason for discharge.  Therefore, the applicant's RE code was appropriately assigned in accordance with the regulatory guidance above.  The applicant is ineligible for reenlistment in the Army.

3.  The Board is empowered to change the characterization of and reason for the discharge if clemency is determined to be appropriate.  Given the above, and after a thorough review of the applicant’s record and the serious nature of his offenses, there is no cause for clemency.

4.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any 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)                                         AR20080014647



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ABCMR Record of Proceedings (cont)                                         AR20080014647



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