DOCKET NUMBER:  AR20090005474 


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 bad conduct discharge be upgraded to an honorable discharge and his Reentry (RE) Code upgraded to RE-1. 

2.  The applicant states, in effect, that he fully cooperated with the investigation, that he served his time, and now is a mature adult with a young family.  He further would like an opportunity to right the wrong with continued service in the U.S. Army by upgrading his RE code to RE-1 or apply for a Federal job so he can provide for his family.

3.  The applicant provides a self-authored personal statement, court documents showing he changed his surname, copies of various state identification cards, copies of his marriage license and a birth certificate for his child, eight letters of recommendation, copies of training certificates showing he graduated from the basic officer leadership training course for the U.S. Naval Sea Cadet Corps, an assumption of command order for his post within the U.S. Naval Sea Cadet Corps, and a copy of an evaluation report for his duties within the U.S. Naval Sea Cadet Corps. 

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of 


Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 
3-year statute of limitations if the ABCMR determines it would be in the interest of 
justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Regular Army (RA) for a 4-year period on 9 January 1991.  The DD Form 4/1 (Enlistment/Reenlistment Document) records the applicant's last name as Jones.  He successfully completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11B (Infantryman).  The highest rank he achieved while serving on active duty was private first class (PFC)/pay grade E-3.

3.  After service in Korea, the applicant was assigned to Headquarters and Headquarters Company, 2nd Infantry Battalion, 9th Infantry Regiment, Fort Ord, California on 25 June 1992.

4.  On 16 July 1992, the applicant received nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from on or about 3 June 1992 to on or about         18 June 1992.

5.  On 16 April 1993, the applicant was found guilty at a general court-martial for conspiracy to steal a motorcycle on 17 October 1992 and 17 November 1992, larceny of a motorcycle on 18 November 1992, and attempted larceny of a motorcycle on 21 November 1992.  His sentence consisted of reduction to private (PV1)/pay grade E-1, forfeiture of all pay and allowances, confinement for 5 months, and a bad conduct discharge.  The convening authority approved the sentence.

6.  On 8 September 1993, the findings and sentence were affirmed by the U.S. Army Court of Military Review.

7.  Headquarters, U.S. Army Field Artillery Center, Fort Sill, Oklahoma, General Court-Martial Order Number 1, dated 6 January 1994, ordered the discharge portion of the sentence executed.



8.  On 15 February 1994, the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) based 
on his court-martial conviction.  His service was characterized as bad conduct. 
His net active service was 2 years, 8 months, and 18 days with 141 days of lost time under Title 10, U.S. Code, section 972.  The DD Form 214 issued upon his separation shows he received a bad conduct discharge and issued a separation code of JJD and an RE code of 4.  He was 22 years old at that time.  

9.  In the applicant's self-authored statement he states, in effect, that it has been nearly 14 years since he stole a motorcycle with the intent to sell it for monetary gain; however, prior to selling the motorcycle he crashed it while he was operating it.  He states that he cooperated with authorities during their investigation and that he remembers being read his rights.  He states he was found guilty of three charges and specifications during a general court-martial and ordered to confinement with a resultant bad conduct discharge.  He states he was young and immature at the time of his offense, but now he is a stable and mature adult supporting a family and respected in his community, at work, and at home.  The effects of the bad conduct discharge still haunt him as he seeks better employment to support his family.  He volunteers with the U.S. Naval Sea Cadet Corps teaching teenage youth the basic principles of military service and within this organization he has served in various leadership positions.  He would like to rejoin the U.S. Army and right his wrongdoing. 

10.  On behalf of the applicant, five members of the U.S. Naval Sea Cadet Corps Blueback Battalion provided articulate letters of recommendation stating the applicant was loyal, trustworthy, and a very dedicated member of the battalion serving in various leadership positions within the unit.  The core mission of the battalion is to train adolescent youth in the basic principles of military service, patriotism, courage, self-reliance, and seagoing skills.  Through his exemplary service, these authors state that the applicant would be an honorable asset to the U.S. Army and, in effect, recommend that his characterization of service be upgraded so he can reenter the Army.  

11.  The applicant's supervisor, a lead teacher in the local public school district, states, in effect, that the applicant is a dedicated instructional assistant who is organized, efficient, extremely competent with clear and concise verbal and written communication skills, and that he serves students with compassion.  The supervisor supports the applicant's desire to return to military service, and in effect, recommends his discharge be upgraded so he can enlist in the U.S. Army.



12.  On behalf of the applicant, an adult family member and a personal friend provided character reference letters for the Board's consideration.  Each author states, in effect, that the applicant is a hard worker who is dependable, reliable, and trustworthy as a father and friend.

13.  In support of his application, the applicant provided documents from the 
U.S. Naval Sea Cadet Corps that show he was an officer within the organization, that he completed basic officer leadership training, that he served as the battalion executive officer, and then assumed command of the battalion.  He provided copies of an incomplete evaluation report that shows he met or exceeded standards within all areas of evaluation, to include increasing membership enrollment within the battalion. 

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3, Section IV, establishes policy and procedures for separating members with a dishonorable or bad conduct discharge.  It provides that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial and that, the appellate review must be completed and affirmed sentence ordered duly executed.

15.  Army Regulation 635-200, 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.

16.  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.

17.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the Army Board for Correction of Military Records 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.

18.  Army Regulation 635-200 further 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 (RA) and the U.S. Army Reserve (USAR).  Table 3-1 included a list of the RA RE codes:

	a.  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.

	b.  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. 

	c.  RE-4 applies to Soldiers who are separated from their last period of service with a nonwaivable disqualification.  They are ineligible for enlistment.  

19.  Army Regulation 635-5 (Separation Documents) dictates that the entry code listed on Tables 2-2 or 2-3 of Army Regulation 635-5-1 (Separation Program Designator [SPD] Codes) shows that the appropriate RE code for the SPD code of "JJD" is RE-4 and further stipulates that no deviation is authorized.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he was young and immature when he committed his offense and that he cooperated with authorities.  He contends that his characterization of service has hindered his ability to seek well-paying employment and that through his dedicated and honorable service as an officer in the U.S. Naval Sea Cadet Corps he is now prepared to enlist in the U.S. Army to right his wrongdoing and honorably serve his country.  

2.  The evidence shows that the applicant’s trial by court-martial was warranted by the gravity of the offenses for which he was charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which he was convicted.  Court-martial convictions and sentences are unique to each offender and are based upon the independent and individualized judgment of the members of the court-martial. 


3.  The applicant's contention that he was young and immature at the time is not sufficiently mitigating to warrant relief.  The Board notes that the applicant was 22 years of age, had satisfactorily completed basic combat and advanced individual training, and had served for over 2 years with one negative incident reported and documented.  Notwithstanding the AWOL period, his performance demonstrates his capacity to serve and shows that he was neither too young nor immature.

4.  The applicant's entire record of service was considered.  There is no record or documentary evidence of acts of valor, achievement, or service that would warrant special recognition.  Given the seriousness of the offenses for which he was convicted, his record was not considered sufficiently meritorious to warrant clemency in this case.  Likewise, while the applicant's post-service conduct and achievements are commendable, they are insufficient to upgrade a properly issued discharge.  As a result, there is no evidentiary basis upon which to support the applicant’s request to upgrade his discharge at this time.  

5.  Based on the foregoing, there is an insufficient basis to upgrade the applicant's discharge to honorable or to a general under honorable conditions. 

6.  Any redress by this Board of the finality of a court-martial conviction is prohibited by law.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  The ABCMR does not upgrade discharges based solely on the passage of time.

7.  As there is insufficient evidence to upgrade the applicant's discharge, there is no evidence to support upgrading the applicant's RE code.  The RE code was determined based on the issued SPD code and narrative reason for separation.  Therefore, there is no basis for changing the applicant's RE code.

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)                                         AR20090005474



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ABCMR Record of Proceedings (cont)                                         AR20090005474



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