IN THE CASE OF:	  

		BOARD DATE:	        20 NOVEMBER 2008

		DOCKET NUMBER:  AR20080014916 


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 Bad Conduct Discharge be upgraded to a general discharge under honorable conditions and that his reentry eligibility (RE) code be changed to allow reenlistment.

2.  The applicant states that his discharge was based on one isolated incident and he has never had a problem of that nature before or in civilian life.  The other persons involved were never charged.  He wants the opportunity to reenlist.

3.  The applicant provides a copy of his county license, certificate of completion of nursing assistant training, and certificate of completion of a homebuyer seminar.

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.  A review of the applicant's official record shows that he had several periods of active duty.  He served in the Regular Army from 19 May 1988 through 14 September 1992.  He was honorably released from active duty under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 16-8, by reason of the Fiscal Year 1992 Early Transition Program.

3.  The applicant served again on active duty from 10 May 1994 through 25 September 1995.  He was released from active duty under the provisions of Army Regulation 635-200, chapter 13, by reason of unsatisfactory performance.

4.  The applicant also had 2 periods of service in the Alabama Army National Guard, from 15 September 1992 through 9 May 1994 and 24 January 1998 through 8 November 2000.

5.  The applicant's final period of active duty was from 9 November 2000 through 3 December 2004.  He was trained in, awarded, and served in military occupational specialty 92G (Food Service Specialist).

6.  On 30 May 2002, he was convicted by a general court-martial of simple assault committed with an unloaded firearm; unlawfully grabbing a private around the throat with his hand; wrongfully communicating a threat to kill the private by placing a firearm to the private's head and by stating to him, "I'll motherfucking kill you," or words to that effect; and absence without leave (AWOL) from 18 through 26 December 2001.  He was sentenced to be discharged with a bad conduct discharge, to confinement at hard labor for 1 year and 6 months, a forfeiture of all pay and allowances, and a reduction to private/E-1.  The general court-martial convening authority approved the sentence.  Except for the part of the sentence extending to the bad conduct discharge, the sentence was ordered executed and the applicant was ordered confined.  He was credited with 260 days of confinement against the sentence of confinement.  The adjudged forfeitures were deferred under the provisions of Article 57(a), Uniform Code of Military Justice (UCMJ), effective 13 June 2002 until action was taken.

7.  On 15 October 2004, the convening authority ordered the Bad Conduct Discharge to be executed.  He was credited with 260 days of confinement against the sentence of confinement.  The adjudged forfeitures were deferred under the provisions of Article 57(a), UCMJ, effective 13 June 2002 until 18 December 2002.  The automatic forfeiture of pay and allowances required by Article 58b, UCMJ, was deferred effective 13 June 2002 until 18 December 2002. The portion of the sentence pertaining to confinement had been served.  The general court-martial convening authority took final action on the sentence after complying with the provisions of Article 71(c).  On 3 December 2004, the applicant was separated with a bad conduct discharge.  He had completed 3 years, 5 months, and 27 days of creditable active service and had 203 days of lost time due to AWOL and military confinement.

8.  Army Regulation 635-200 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.

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, 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.

11.  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.

12.  Army Regulation 635-5 (Separation Documents) prescribes policies and procedures regarding separation documents (DD Form 214/215).  Items 25 (Separation Authority), 26 (Separation Program Designator (SPD) Code), and 28 (Narrative Reason for Separation) of the DD Form 214 are completed in accordance with Army Regulation 635-5-1 (SPD Codes).

13.  Army Regulation 635-5-1 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."

14.  Additionally, Table 2-3 (SPD/RE Code Cross Reference Table), AR 635-5, 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 4 means the applicant was separated from his last period of service with a disqualification which cannot be waived and he is ineligible for reenlistment.

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 contentions are noted; however, he failed to provide sufficiently mitigating evidence to warrant a change in his discharge.  In view of the nature of his misconduct, his type of discharge is consistent with his offenses. Further, his contentions relate to evidentiary and procedural matters which should have been raised and considered at the time of his court-martial and do not provide a basis for clemency.

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.  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.

5.  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)                                         AR20080012446



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ABCMR Record of Proceedings (cont)                                         AR20080014916



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