IN THE CASE OF:
BOARD DATE: 13 April 2010
DOCKET NUMBER: AR20090010622
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 bad conduct discharge (BCD) to a general discharge (GD) and a change to the reentry eligibility (RE) code he was assigned.
2. The applicant states:
* his discharge was a result of an alcohol problem and immaturity
* he has gotten over his alcohol problem and learned from his actions
* he is trying to get his RE code changed so he can get a waiver to join the military
* he would like to serve his country to the best of his ability, the way he originally wanted
* he hopes to stay in the military without his immaturity getting in the way
3. The applicant provides no additional documentation 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. On 22 May 2003, the applicant enlisted in the Army for 6 years at age 19. He successfully completed his training as a multiple rocket launch system/high mobility artillery rocket system crewman. He was transferred to Korea on 24 September 2003.
3. On 14 September 2004, the applicant was convicted pursuant to his pleas by a general court-martial of the charges reflected in General Court-Martial Order Number 5, which includes the following:
* willfully disobeying a lawful order from his superior commissioned officer on 12 June 2004 to refrain from drinking alcohol
* committing an assault on a Soldier by cutting him with a dangerous weapon (a knife) on 24 April 2004
* unlawfully grabbing another Soldier on or near the neck with his hands on 12 June 2004
* wrongfully communicating a threat to kill two fellow Soldiers on 12 June 2004
4. His sentence included:
* discharge from the service with a BCD
* confinement for 18 months
* reduction to pay grade E-1
* forfeiture of all pay and allowances
5. The convening authority approved the sentenced as adjudged and, except for the part extending to a BCD, the sentenced was ordered executed with 92 days of confinement credit against the sentence of confinement.
6. On 22 June 2005, the U.S. Army Court of Criminal Appeals ordered General Court-Martial Order Number 5 corrected to show the applicant's assignment to the 37th Field Artillery Regiment instead of the 38th Field Artillery Regiment and the date on pages two and three as 20 January 2005.
7. The date of his return to the continental United States is unavailable.
8. On 27 October 2005, General Court-Martial Order Number 172, Headquarters, U.S. Army Field Artillery Center and Fort Sill, noting that the findings and sentence as approved by the convening authority had been affirmed, ordered that the BCD be executed.
9. Accordingly, on 23 June 2006, the applicant was discharged under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 3, as a result of a duly reviewed and affirmed general court-martial conviction. He had completed 1 year, 11 months, and 9 days of total active service and he had approximately 1 year, 1 month, and 23 days of lost time due to confinement. He was furnished a BCD.
10. The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was assigned an RE-4 code and a JJD (Court Martial, Other) separation code.
11. Title 10, U.S. Code, section 1552, the authority under which this Board acts, provides, in pertinent part, that the 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 modify the severity of the punishment imposed.
12. 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 duly executed.
13. Paragraph 3-7b of Army Regulation 635-200 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.
14. Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the U.S. Amy Reserve. Army Regulation 601-210 states 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. Chapter 3 of this regulation prescribes basic eligibility for prior-service applicants for enlistment. This chapter includes a list of Armed Forces RE codes.
An RE-4 code applies to persons ineligible for enlistment.
15. Army Regulation 601-210, paragraph 3-10, also provides that RE codes may be changed only if they are determined to be administratively incorrect. Applicants who have corrected RE codes would be processed for a waiver at their request if otherwise qualified and a waiver is authorized.
16. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribes the specific authorities (regulatory, statutory, or other directives) and reasons for the separation of members from active military service and the SPD code to be used for these stated reasons.
17. The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Regular Army Soldiers and Reserve Component Soldiers separated for cause. The SPD code JJD has a corresponding RE-4 code.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that his BCD should be upgraded to a GD and that his RE-4 code be changed.
2. His contentions have been considered. However, his records do not show that he served under honorable conditions.
3. The applicant's records show that he was convicted by a general court-martial of assaulting another Soldier, disobeying a lawful order to refrain from drinking alcohol, communicating a threat to two Soldiers, and grabbing another Soldier on or near the neck. Considering the nature of his offenses, his BCD appropriately characterizes his overall record of service.
4. Although the applicant desires to enlist in the military and serve his country to the best of his ability now that he is more mature, that is an insufficient justification for granting the relief requested. His records show that he was over 20 years old at the time of his court-martial conviction.
5. There is no error or injustice in the applicant's assigned RE code. He was discharged as a result of a duly reviewed and affirmed general court-martial conviction. He was assigned an RE-4 code and an SPD JJD based on his reason for discharge.
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) AR20090010622
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ABCMR Record of Proceedings (cont) AR20090010622
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