IN THE CASE OF:	

		BOARD DATE:	  9 October 2008

		DOCKET NUMBER:  AR20080009330 


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, an upgrade of his bad conduct discharge (BCD) and of his reentry (RE) code.   

2.  The applicant states, in effect, he would like his BCD and RE-4 code upgraded in order to allow him to enlist.  He states that there is no excuse for his action that led to his discharge and he has never attempted to make an excuse for or deny his action.  However, he does believe it is unjust that he is barred from further service and his record prior to his court-martial was outstanding.  He now requests the opportunity to finish what he started.  

3.  The applicant provides no documentary evidence in support of his application. 

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he enlisted in the Regular Army and entered active duty on 20 June 2002, and was trained in and awarded military occupational specialty (MOS) 19K (Armor Crewman).  

2.  The applicant's record shows he served in Iraq from 27 April 2003 through 
15 August 2004, and was awarded the Army Commendation Medal for his meritorious service during this period.  His record documents no acts of valor or significant achievement.   


3.  On 13 September 2005, a general court-martial (GCM) found the applicant guilty, pursuant to his pleas, of violating Article 112a of the Uniform Code of Military Justice (UCMJ) by wrongfully distributing some amount of methylenedioxy-methamphetamine (Ecstasy) between on or about 1 August 2004 and on or about 14 January 2005; by wrongfully possessing some amount of cocaine on or about 15 January 2005; by wrongfully using cocaine between on or about 1 November 2004 and on or about 14 January 2005; by wrongfully using methylenedioxy-methamphetamine (Ecstasy) between on or about 1 November 2004 and on or about 14 January 2005; by wrongfully using methylenedioxy-methamphetamine (Ecstasy) on or about 18 March 2005; and of violating Article 90 of the UCMJ by breaking restriction on or about 24 March 2005.  The resultant sentence from the military judge was reduction to private/E-1 (PV1), confinement for 4 months, and a BCD.  

4.  On 28 April 2006, in Headquarters, 1st Armored Division GCM Order Number 12, the GCM convening authority approved the sentence imposed on the applicant and directed all but the BCD portion of the sentence to be executed.  

5.  On 20 October 2006, the United States Army Court of Criminal Appeals reviewed the applicant's case and on consideration of the entire record, held the findings of guilty and the sentence approved the convening authority correct in law and fact.  Accordingly, the findings of guilty and the sentence were affirmed.  

6.  Headquarters, United States Army Armor Center, Fort Knox, Kentucky, GCM Order Number 58, dated 6 March 2007, directed, Article 71(c) of the UCMJ having been complied with, that the BCD be duly executed.  On 15 June 2007, the applicant was discharged accordingly.  The separation document (DD form 214) he was issued shows he completed a total of 4 years, 8 months, and
17 days of creditable active military service and accrued 101 days of time lost.  The DD Form 214 also shows that he was separated under the provisions of Chapter 3, Army Regulation 635-200, by reason of court-martial.  It further shows that based on the authority and reason for his separation, he was assigned a Separation Program Designator (SPD) code of JJD and an RE code of 4.  

7.  Army Regulation 601-210 covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the United States Army Reserve (USAR).  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-4 applies to persons who have a nonwaivable disqualification. 

8.  Army Regulation 635-5-1 (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 the SPD code JJD is the appropriate code to assign to Soldiers separated under the provisions of Chapter 3, Army Regulation 635-200, by reason of court-martial.  The SPD/RE Code Cross Reference Table indicates that RE-4 is the proper code to assign members separated with SPD code JJD.  

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 provides the policies and procedures for separating members with a dishonorable or bad conduct discharge.  It stipulates, in pertinent part, that a Soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial, and that the appellate review must be completed and affirmed before the sentence is ordered duly executed.

10.  Title 10 of the United States Code, section 1552 as amended does not permit any redress by this Board of the finality of a court-martial conviction and empowers the Board to only change a discharge if clemency is determined to be appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge and RE code should be upgraded based on his overall record of service in order to allow him to enlist and finish what he started has been carefully considered.  However, there is an insufficient evidentiary basis to support granting the requested relief. 

2.  The evidence of record reveals no error or injustice related to the applicant’s court-martial and/or his subsequent discharge, or to the assignment of the RE-4 code in question.  By law, any redress by this Board of the finality of a court-martial conviction under the UCMJ, is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

3.  The applicant's prior good record of service and his desire to enlist are noteworthy.  However, given the gravity of the offenses the resulted in his GCM conviction and BCD, these factors are not sufficient to support an upgrade of his BCD and RE-4 code.  

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)                                         AR20080009330



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ABCMR Record of Proceedings (cont)                                         AR20080009330



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