BOARD DATE:	  12 January 2010

		DOCKET NUMBER:  AR20090011147 


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 upgrade of his bad conduct discharge to a general, under honorable conditions discharge.  He also requests, in effect, change of his Reentry (RE) code so he can reenter the Army.

2.  The applicant states that his discharge was inequitable because he was a medical hold patient who suffered a closed-head brain injury while on active duty.  He contends that it was also unfair because he complained about the victim on several occasions and no action was taken, that the crime he committed was out of character, and that he did not know right or wrong at the time due to the fact that he was a patient on medication.  He goes on to state that he was on medical hold for 2 years awaiting a medical discharge, that he feels he was set up, that his lawyer did not correctly represent him, and that his chain of command had poor leadership.

3.  The applicant states that he enlisted to better himself and retirement was on his mind but due to an accident which placed him in a coma for 3 days his dream was cut short.  He indicates that he was punished for being on medical hold and defending himself.  He also states that he cannot take care of himself financially, physically, or mentally.

4.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty); Department of Veterans Affairs (DVA) and military medical records, dated 2000 and 2001; and a self-authored letter, dated
26 August 2009, 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 enlisted in the Regular Army (RA) on 29 April 1999.  He completed training and he was awarded military occupational specialty (MOS) 13P (Multiple Launch Rocket System (MLRS)/fire direction specialist).

3.  The applicant provided a DVA medical record, dated 26 March 2000, which states that he was an unrestrained passenger involved in a motor vehicle accident on 11 March 2000 and he was ultimately admitted to the Tampa VA rehabilitation service for evaluation and treatment by the head injury team.  He was released from the VA facility on 11 May 2000 and his diagnoses were status post-traumatic head injury with subarachnoid hemorrhage, contusions, and punctuate lesions secondary to motor vehicle accident on 11 March 2000; right acetabular fracture; left L6 transverse process fracture; and cognitive impairment.

4.  On 19 July 2002, in accordance with his pleas, the applicant was convicted by a general court-martial of aggravated assault with the intent to inflict grievous bodily harm (stabbing a private in the buttocks and back with a knife) and unlawful entry with intent to commit aggravated assault with intent to inflict grievous bodily harm.  He was sentenced to be confined for 54 months, to forfeit all pay and allowances, to be reduced to E-1, and to be discharged with a bad conduct discharge.  On 6 January 2003, the convening authority approved the sentence but suspended confinement in excess of 42 months for 42 months.

5.  The decision of the U.S. Army Court of Military Review and the convening authority action ordering the bad conduct discharge to be executed is not available for review.

6.  The applicant was discharged with a bad conduct discharge on 22 February 2006 under the provisions of Army Regulation 635-200 (Personnel Separations – 
Active Duty Enlisted Administrative Separations), chapter 3, as a result of a court-martial.  He had served a total of 3 years, 3 months, and 23 days of total active service.  His lost time totaled 3 years and 11 months due to confinement and excess leave.

7.  Item 25 (Separation Authority) of the applicant's DD Form 214 shows the entry "AR [Army Regulation] 635-200, CHAP [chapter] 3."  Item 
26 (Separation Code) of his DD Form 214 shows the entry "JJD."  Item 
28 (Narrative Reason for Separation) of his DD Form 214 shows the entry "COURT-MARTIAL, OTHER."

8.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Chapter 3 of this regulation states 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.

9.  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.

10.  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 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.

11.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPDs to be used for these stated reasons.  The regulation states the reason for discharge based on separation code "JJD" is "Court-Martial, Other" and the regulatory authority is Army Regulation 635-200, chapter 3.

12.  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 RA and the U.S. Army Reserve (USAR).  Table 3-1 included a list of the RA RE codes:

	a.  RE-1 applies to persons completing an initial term of active service who were fully qualified when last separated.

	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.

13.  The SPD/RE Code Cross Reference Table, dated 8 September 2005, shows that Soldiers given a separation program designator of "JJD" will be given an RE code of 4.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that he was a medical hold patient who suffered a closed-head brain injury while on active duty and that he did not know right or wrong at the time due to the fact that he was on medication were noted.  However, there is no evidence of record which shows the applicant's misconduct was the result of his injury or medication.  In addition, the applicant had the opportunity to present any medical issues/concerns during his general court-martial.

2.  The applicant's contentions that he feels he was set up and that his lawyer did not adequately represent him relate to evidentiary and legal matters that should have been addressed and conclusively adjudicated in the court-martial appellate process.

3.  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 discharge appropriately characterizes the misconduct for which the applicant was convicted.

4.  The applicant's record of service included one general court-martial conviction for serious offenses and almost four years of lost time.  As a result, his record of service was not satisfactory.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general, under honorable conditions discharge.
5.  The applicant’s RE code was administratively correct and in conformance with applicable regulations at the time of his separation.  Therefore, there is no basis for granting the applicant's request to change his 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)                                         AR20090011147



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ABCMR Record of Proceedings (cont)                                         AR20090011147



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