IN THE CASE OF:
BOARD DATE: 21 April 2009
DOCKET NUMBER: AR20080018927
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 correction of appropriate military records to show a reentry eligibility (RE) code which would allow reenlistment. In effect, this constitutes a request for removal or waiver of those disqualifications which preclude reenlistment.
2. The applicant states that he is full of regret for what he did on active duty. He made wrong decisions. He did 2.5 years of rehabilitation and successfully completed 8 months of military parole. He has been clean for 3 years. He is requesting a second chance to be a Soldier. He was 18 years old when the incident occurred. He did not distribute drugs; he only used them. He states, "I had 'some' that we did together, but they were just as guilty and wrongful as I was and they are still in the military."
3. The applicant provides a copy of his military identification card; page 2 of a DD Form 293; a memorandum, dated 8 March 2007; a notification of arrival, dated 22 February 2008; an Addendum to Parole Certificate; his DD Form 214 (Certificate of Release or Discharge from Active Duty); and a reference from his head teacher in an adult education program.
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the Regular Army, on 15 November 2005, at the age of 18 years and 11 months. He completed training as a combat engineer and was stationed at Fort Knox, Kentucky.
2. On 25 January 2007 the applicant pled guilty before a general court-martial to being absent without leave (AWOL) for 36 days, three specifications of distributing cocaine to three different privates, possessing cocaine, using cocaine, and driving on post while his driving privileges were suspended.
3. The applicant was found guilty of those charges and specifications and sentenced to 24 months of confinement and a bad conduct discharge. The convening authority approved the findings and sentence and they were affirmed by the Army Court of Criminal Appeals. The United States Court of Appeals denied the applicant's petition to review the case.
4. Accordingly, the applicant was discharged pursuant to a duly affirmed court-martial conviction on 16 May 2008. He had completed 9 months and 9 days of creditable active duty service and had 624 days of lost time due to AWOL and confinement. He was assigned an RE code of 4 and a separation program designator code of JJD.
5. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides 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. It states, in pertinent part, that SPD code JJD is the appropriate code to assign to Soldiers separated due to conviction by court-martial. The SPD/RE Code Cross Reference Table stipulates that an RE-4 will be assigned to members separated under these provisions with an SPD code of JJD.
6. 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 (Active and Reserve Components Enlistment Program) 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. RE-4 applies to persons separated with a nonwaivable disqualification.
DISCUSSION AND CONCLUSION
1. The applicant states that he is full of regret, that he made wrong decisions. He has been clean for 3 years. He is requesting a second chance to be a Soldier. He was 18 years old; he did not distribute drugs; he only used them. He states, "I had 'some' that we did together, but they were just as guilty and wrongful as I was and they are still in the military."
2. 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.
3. The applicant's contentions have been noted; however, they are not sufficiently mitigating to warrant relief when compared to the nature of his misconduct and his otherwise undistinguished record of service during his short time in service. His RE code is nonwaivable and should remain so.
4. 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.
__________X_______________
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) AR20080018927
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ABCMR Record of Proceedings (cont) AR20080018927
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