DOCKET NUMBER:  AR20090003041 


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 an upgrade of his discharge and correction of his Reentry (RE) Code from RE-4 to a more favorable code.

2.  The applicant states that his military discharge is unjust based on the fairness of the General Court-Martial.  He adds that he admits that what he did was wrong and takes full responsibility for his actions; however, he claims that his entire service record, including his two combat deployments, was not taken into consideration during his Court-Martial.  He also states that since his discharge, he has been involved in his community by mentoring high school students.  He further states that other Soldiers who were charged with desertion received a lesser punishment than he did and are allowed a second chance in the military whereas he feels that he was punished to set an example to other Soldiers in the special operations community.  

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 19 January 2007; a copy of his DA Form 1059 (Service School Academic Evaluation Report) and diploma, dated 15 May 2003, showing completion of the Counterintelligence Agent course; a copy of an undated certificate of achievement recognizing him as the honor graduate during the Counterintelligence Agent course; a copy of a certificate of training, dated 12 September 2003, a copy of a diploma, dated 13 July 2004, showing completion of the Counterintelligence Force Protection Source Operations Course; and a copy of his DA Form 873 (Certificate of Clearance and/or Security Determination), dated 25 June 2003, in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army on 24 October 2002.  He completed basic combat and advanced individual training and was awarded military occupational specialty 11B (Infantryman).  He also completed the Counterintelligence course, was promoted to specialist/E-4, and was assigned to the 75th Ranger Regiment, Fort Benning, GA. 

2.  The applicant's records further show that he was awarded the National Defense Service Medal, the Army Service Ribbon, and the Parachutist Badge. 

3.  On 4 January 2005, the applicant pleaded guilty at a General Court-Martial to one specification of being derelict in the performance of his duties in that he willfully failed to use his government travel card for only necessary and reasonable expenses incurred while on official travel on divers occasions between 2 June 2004 and 11 August 2004; one specification of stealing a motor vehicle valued at $9000.00, the property of another Soldier, on or about 15 May 2004; and one specification of failing to pay a debt in the sum of $1,286.00 to Bank of America which came due on 10 August 2004.  The Court sentenced him to a reduction to the rank/grade of private (PVT)/E-1, a forfeiture of $1,200.00 pay per month for 10 months, confinement for 10 months, and a bad conduct discharge.  The sentence was adjudged on 4 January 2005.  He was transferred to the Fort Knox, KY, Regional Correctional Facility, for service of his sentence to confinement.

4.  On 20 May 2005, the convening authority approved a reduced sentence of reduction to PVT/E-1, a forfeiture of $1,200.00 pay per month for 10 months, confinement for 6 months, a bad conduct discharge, and the forfeiture be reduced to $823.00 pay per month upon release from confinement; and except for that part of the sentence extending to a bad conduct discharge, he ordered the sentence executed.

5.  On 15 February 2006, 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, General Court-Martial Order Number 130, dated 14 July 2006, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the bad conduct discharge executed. 



7.  The applicant was discharged from the Army on 19 January 2007.  The DD Form 214 he was issued shows he was discharged under the provisions of chapter 3, Army Regulation 635-200 (Personnel Separations), as a result of court-martial.  This form further shows the applicant's character of service as bad conduct and that he completed 3 years, 9 months, and 13 days of creditable military service and 163 days of lost time due to being in confinement.  Item 26 (Separation Code) shows the entry “JJD” and item 27 (Reentry Code) shows the entry “4.” 

8.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, United States Code, section 1552, the authority under which this Board acts, the Army Board for Correction of Military Records (ABCMR) is not empowered to set aside a 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.

9.  Army Regulation 635-200 sets forth the basic policy governing the separation of enlisted personnel.  Paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

10.  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.

11.  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 last period of service with a nonwaivable disqualification.

12.  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 discharge is Army Regulation 635-200, chapter 3, as a result of a court-martial.  

13.  The Separation Program Designator Code (SPD)/Reentry (RE) Code Cross Reference Table, dated 31 March 2005, provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers.  This cross reference table shows the SPD code and a corresponding RE code.  The SPD code of "JJD" has a corresponding RE code of "4."

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge and RE code should be upgraded.

2.  With respect to the applicant’s character of service, the applicant’s specialized training and/or his successful accomplishments subsequent to his discharge are noted; however, they are not sufficiently mitigating to grant him the requested relief.  Furthermore, there is no evidence in the available records and the applicant did not provide any evidence that shows his conviction was used to set an example within the special operations community.  

3.  The evidence of record shows that the applicant’s trial by General 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 characterized the misconduct for which the applicant was convicted.  By law, any redress by this Board of the finality of a court-martial conviction 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.

4.  After a review of the applicant’s entire record of service, it is clear that his service did not meet the criteria for a general or an honorable discharge.  As a result, there is insufficient basis to upgrade the applicant's discharge to either an honorable or a general discharge.
5.  With respect to the applicant’s RE code, 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.” 

6.  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)                                         AR20090003041





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ABCMR Record of Proceedings (cont)                                         AR20090003041



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