IN THE CASE OF:	 

		BOARD DATE:	  7 January 2010

		DOCKET NUMBER:  AR20090005621 


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, a change to his reentry eligibility (RE) code.

2.  The applicant states, in effect, the RE-4 code he received is unwarranted, extreme, and unjust.  He claims his court-martial was unjust and corrective action in the form of an upgrade of his discharge has already been taken.  He claims he wants to make a long-term commitment to the Army, but is unable to do so because of his RE-4 code.

3.  The applicant provides copies of his DD Forms 214 (Certificate of Release or Discharge from Active Duty) and court-martial orders in support of his application.

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's records show he enlisted in the Regular Army (RA) and entered active duty on 15 November 2000.  He was trained in, awarded, and served in military occupational specialty 11B (Infantryman).

3.  The applicant's record shows that during his tenure on active duty he earned the National Defense Service Medal and Army Service Ribbon.  His record documents no acts of valor or significant achievement.

4.  On 26 February 2004, a special court-martial (SPCM) found the applicant guilty of violating Articles 89, 90, 91, and 128 of the Uniform Code of Military Justice (UCMJ) and sentenced him to confinement for 4 months and a BCD.

5.  On 7 April 2005, the BCD portion of the applicant's sentence was ordered to be duly executed upon completion of the appellate process in SPCM Order Number 68, issued by Headquarters, U.S. Army Armor Center and Fort Knox, Fort Knox, Kentucky.   On 10 June 2005, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time shows he was discharged under the provisions of chapter 3, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), as a result of a court-martial and that he received a BCD.  This document also confirms he had completed a total of 4 years, 4 months, and 29 days of creditable active military service.

6.  On 29 October 2008, the Army Discharge Review Board (ADRB) reviewed the applicant's request for an upgrade of his discharge and a change to his RE code. 
The ADRB found that the characterization of the applicant's discharge was inequitable based on his overall record of service and voted to grant clemency and upgrade the applicant's BCD to a general under honorable conditions discharge (GD) based on his overall record of service.  The ADRB found the authority and reason for the applicant's discharge was proper and equitable and voted not to change the reason for discharge.  It further informed the applicant that a change to his RE code was not within the purview of the ADRB and advised the applicant apply to this Board on this matter.

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 provides that a Soldier will be given a BCD 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.


8.  Pertinent Army regulations provide 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 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the U.S. Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility criteria for prior-service applicants for enlistment.  That chapter includes a list of Armed Forces RE codes, including RA RE codes.  RE-4 applies to members permanently disqualified from further service.

9.  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 of JJD is the appropriate code to assign to Soldiers separated under the provisions of section IV, chapter 3, Army Regulation 635-200, by reason of court-martial.  The SPD/RE Code Cross Reference Table confirms that RE-4 is the applicable code to assign to members separated under this provision of the regulation who are assigned an SPD code of JJD.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his RE-4 code should be changed to allow him to reenter military service because his court-martial was unjust and has since been upgraded was carefully considered.  However, there is insufficient evidence to support this claim.

2.  The evidence of record confirms the applicant's court-martial was properly conducted and that the BCD portion of his sentence was only executed after completion of the appellate process.  Further, although the ADRB elected to upgrade his discharge to a GD based on his overall record of service as a matter of equity (clemency), it also determined the reason and authority for his discharge was proper and equitable and it voted not to change them.

3.  By regulation, RE-4 is the proper code to assign to members separated under the provisions of chapter 3, Army Regulation 635-200, by reason of court-martial with a SPD code of JDD.  Therefore, given the authority and reason for the applicant's discharge was proper and equitable, the RE-4 assignment was and remains valid in spite of the subsequent upgrade of his BCD to a GD by the ADRB.


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)                                         AR20090005621



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ABCMR Record of Proceedings (cont)                                         AR20090005621



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