IN THE CASE OF:	  

		BOARD DATE:	  5 May 2009

		DOCKET NUMBER:  AR20090001355 


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 his reentry (RE) code be upgraded from RE-4 to a more favorable code so he may reenter military service.

2.  The applicant states, in effect, that for the past few years, he has been thinking and struggling with the foolish mistakes he made that ruined his military career.  He realizes that what he did was wrong and he is very sorry.  He requests that the Board give him a second chance so that he may serve his country.

3.  The applicant provides copies of his DA Forms 2166-7 (Noncommissioned Officer Evaluation Report) for the periods 200010-200109, 199910-200009, 199712-199809, 199703-199711, 199604-199702, 199502-199512, 199408-199501, and 199408-199501; copies of his DA Forms 1059 (Service School Academic Evaluation Report), dated 7 October 1993, 12 December 2001, and 24 July 1998; a copy of a certificate, dated 17 May 1991; an undated self-authored letter; and three character reference letters, dated on miscellaneous dates, in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he enlisted in the Regular Army on 21 April 1989.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 19K (M-1 Armor Crewmember).  His record also shows he executed a series of reenlistments in the Regular Army and attained the rank/grade of staff sergeant (SSG)/E-6.
2. The applicant's record also shows he served in Southwest Asia from 29 August 1990 to 21 March 1991.  

3.  The applicant was awarded the Army Commendation Medal, the Army Achievement Medal (7th Award), the Good Conduct Medal (4th Award), the National Defense Service Medal (2nd Award), the Southwest Asia Service Medal with three bronze service stars, the Korea Defense Service Medal, the Armed Forces Service Medal, the Noncommissioned Officer Professional Development Ribbon with Numeral 2, the Kuwait Liberation Medal (SA and K), the Driver and Mechanic Badge with Driver-Tracked Vehicle Clasp, the Driver and Mechanic Badge with Driver-Wheeled Vehicle Clasp, and the Drill Sergeant Badge.

4.  On 20 November 2003, the applicant pleaded guilty at a special court-martial to one specification of larceny of cash of a cumulative value of about $1,440.00, the property of another Soldier, on diverse occasions between 2 October and 
4 October 2003; one specification of larceny of an Automatic Teller Machine card of some value, the property of another Soldier, on or about 1 October 2003; and one specification of false swearing, on or about 21 October 2003.  The Court sentenced him to a bad conduct discharge, confinement for 10 days, and reduction to private (PV1)/E-1.  The sentence was adjudged on 20 November 2003 and approved on 6 February 2004.

5.  On 13 October 2005, the U.S. Army Court of Criminal Appeals affirmed the approved findings of guilty and the sentence.

6.  Headquarters, U.S. Army Armor Center and Fort Knox, Fort Knox, KY, Special Court-Martial Order Number 91, dated 6 April 2006, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant’s bad conduct discharge sentence executed.

7.  The applicant was discharged from the Army on 21 July 2006.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows that he was discharged in accordance with chapter 3 of Army Regulation        635-200 (Personnel Separations) as a result of court-martial with a bad conduct discharge.  He completed 17 years, 2 months, and 25 days of creditable military service and he had 6 days of lost time.  Item 26 (Separation Code) shows the entry "JJD" and item 27 (Reentry Code) shows a code of “4.” 

8.  Army Regulation 635-5-1 (Separation Program Designator Codes) states that the SPD codes are three-character alphabetic combinations, which 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 DOD and the military services to assist in the collection and analysis of separation data.  The SPD Code of "JJD" is used when the authority for voluntary discharge is Army Regulation 635-200, chapter 3, as a result of a court-martial.  

9.  Table 2-3 (SPD/RE Code Cross Reference Table) of Army Regulation 635-5 (Separation Documents) establishes the RE codes to be used based on the appropriate SPD code.  In this case, the cross reference table shows that a RE code “4” is assigned when the SPD is "JJD."

10.  The applicant submitted a self-authored letter and three character reference letters as follows:

	a.  in his undated self-authored letter, the applicant states that he regrets his actions and would like a second chance.  He also adds that he contacted the Army National Guard and he was told he needs his RE code upgraded; 

	b.  in a character reference letter, dated 26 September 2008, a friend of the applicant states that she has known him for a few years and describes him as a hard working individual who takes pride in his appearance and conducts himself in a respectful manner; 

	c.  in a character reference letter, dated 28 September 2008, a retired senior noncommissioned officer describes the applicant as dependable, conscientious, and reliable; and

	d.  in an undated character reference letter, the applicant’s wife describes him as an honorable, trustworthy, loyal, and a kindhearted man.  She further appeals to this Board to give her husband a second chance.  

11.  The applicant submitted copies of his evaluation reports that show he was mostly rated “among the best” by his raters.  His senior raters mostly rated his overall potential as “superior.”  He also submitted copies of his service school academic evaluation reports that show he achieved course standards in all three formal schools he completed. 

12.  Army Regulation 635-200 states, in pertinent part, 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 (Regular Army and Army Reserve Enlistment Program), covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the US Army Reserve.  Table 3-1 included a list of the Regular Army Reenlistment Eligibility Codes (RE codes).  An RE-1, applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army.  They are qualified for enlistment if all other criteria are met.  An RE-3, applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable.  They are ineligible unless a waiver is granted.  An RE-4 applies to Soldiers separated from the last period of service with a nonwaivable disqualification.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his RE code should be upgraded to a favorable code that may allow him to reenlist.

2.  The applicant’s successful/superior evaluation reports, academic achievements, combat experience, multiple awards, overall service record and character reference letters are noted; however, the available evidence shows the applicant was convicted by a special court-martial, which was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable laws and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.  

3.  The applicant’s RE code was assigned based on the fact that he was discharged under the provisions of chapter 3 of Army Regulation 635-200 due to a court-martial conviction.  Absent the applicant’s conviction that resulted in his bad conduct discharge, there was no fundamental reason to discharge him.  The underlying reason for his discharge was his court-martial conviction.  The only valid narrative reason for separation permitted is "Court-Martial" and the appropriate RE code associated with this discharge is “4.”

4.  The Army Board for Correction of Military Records (ABCMR) does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  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 has failed to submit evidence that would satisfy this requirement.  Therefore, he is not entitled to relief.

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)                                         AR20090001355



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ABCMR Record of Proceedings (cont)                                         AR20090001355



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