IN THE CASE OF:
BOARD DATE: 1 October 2009
DOCKET NUMBER: AR20090004082
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 Reentry Eligibility (RE) Code of 4 be changed to RE-3 so he may enlist in the Army.
2. The applicant states that he has done his time and punishment. He wants to enlist and finish honorably. He believes that he has learned exponentially from his transgressions. His time at the United States Disciplinary Barracks at Fort Leavenworth, KS has enlightened him more than words can describe.
3. The applicant provides no documentation in support of his application.
CONSIDERATION OF EVIDENCE:
1. On 15 September 2000, the applicant enlisted in the Regular Army (RA). He completed his initial training and he was awarded military occupational specialty 73C (Finance Specialist). He was subsequently assigned for duty in United States Army, Europe (Germany).
2. General Court-Martial Order Number 3, Headquarters, V Corps Rear (Provisional), dated 3 February 2004, charged the applicant with assault consummated by battery. He was found not guilty of the charge, but guilty of assault with intent to commit murder. He was sentenced to reduction to pay grade E-1, forfeiture of all pay and allowances, confinement for 7 years, and a bad conduct discharge.
3. General Court-Martial Order Number 11, United States Army Combined Arms Center, United States Army Disciplinary Barracks, Fort Leavenworth, dated
22 February 2007, provided that the sentence to forfeiture of all pay and allowances, confinement for 7 years, and a bad conduct discharge, as promulgated in Corrected General Court-Martial Order Number 3, Headquarters, V Corps Rear (Provisional), dated 3 February 200417, had been affirmed. The applicant was credited with 195 days of confinement against the sentence to confinement. Article 71(c), UCMJ [Uniform Code of Military Justice], having been complied with, the bad conduct discharge was ordered executed.
4. On 19 March 2007, the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations Active Duty Enlisted Administrative Separations), chapter 3. Accordingly, he was given a Separation Program Designator (SPD) Code of JJD and an RE Code of 4. His character of service was shown on his DD form 214 (Certificate of Release or Discharge from Active Duty) as bad conduct.
5. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 3 of that regulation provides, in pertinent part, that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed.
6. Army Regulation 601-210 (Active and Reserve Components Enlistment Program) prescribes eligibility criteria, policies, and procedures for enlistment and processing into the RA and the Army Reserve. Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment and includes a list of armed forces RE Codes including RA RE codes. RE-4 applies to persons separated from their last period of service with a non-waivable disqualification. That regulation further provides that RE codes may only be changed if they are determined to be administratively incorrect.
7. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities and reasons for separating Soldiers from active duty and the SPD codes to be entered on the DD Form 214. The SPD code of JJD was the appropriate code for the applicant based upon the guidance provided in Army Regulation 635-5-1 for Soldiers separating under the provisions of Army Regulation 635-200, chapter 3, as a result of trial by court-martial. Additionally, the SPD/RE Code Cross Reference Table establishes RE Code 4 as the proper RE code to assign to Soldiers for this reason.
8. Under the UCMJ, the maximum punishment allowed for assault with intent to commit murder is a dishonorable discharge and confinement for 20 years.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that he has served his time and punishment and now wants his RE code changed so that he may enlist in the Army.
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 final discharge appropriately characterized the misconduct for which the applicant was convicted.
3. The RE Code of 4 establishing his ineligibility for enlistment/reenlistment was correctly entered on his separation document in accordance with governing regulations. There is no evidence of error or injustice.
4. There is no apparent basis for removal or waiver of the applicants disqualification that established the basis for the RE-4. While the applicants desire to continue in the service to his country is commendable, there are no provisions authorizing the change of an RE Code for this purpose.
5. In view of the foregoing, there is no basis for granting the applicant's request.
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.
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