IN THE CASE OF:	

		BOARD DATE:	  13 April 2010

		DOCKET NUMBER:  AR20090011430 


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 dishonorable discharge be upgraded and his reentry eligibility (RE) code be changed.

2.  The applicant states the punishment was too harsh.  He contends there are statements in his record of trial that have incorrect dates and the statements directly contradict themselves.  He wants to reenter the military to provide a better life for his family.

3.  In a statement, dated 22 June 2009, the applicant points out numerous mistakes/incorrect dates and contradicting statements and testimony given during the court-martial.

4.  The applicant provides a statement, dated 22 June 2009; a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty); four sworn statements; and excerpts from his Article 32 hearing 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 on 25 June 1999.  He completed training and he was awarded military occupational specialty 63W (wheel vehicle repairer).

3.  On 26 July 2000, the applicant was convicted by a general court-martial of assault, assault with a means likely to produce death or grievous bodily harm with a loaded firearm, and disobeying a lawful command contrary to his pleas.  He was sentenced to be confined for 3 years, to forfeit all pay and allowances, and to be discharged with a dishonorable discharge.  On 7 December 2000, the convening authority approved the sentence.

4.  Item 21 (Time Lost) of the applicant's DA Form 2-1 (Personnel Qualification Record) shows he had 835 days of lost time from 28 March 2000 through 10 July 2002 due to confinement.

5.  The decision of the U.S. Army Court of Criminal Appeals is not available.  However, on 17 September 2003, the convening authority ordered the dishonorable discharge to be executed, indicating the sentence was affirmed.

6.  The applicant was discharged with a dishonorable discharge on 27 August 2004 under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 3, as a result of a court-martial.  His DD Form 214 shows he had served 5 years, 2 months, and 3 days of total active service and had 778 days of excess leave (12 July 2002 to 27 August 2004). It does not show his 835 days of lost time due to confinement.

7.  Item 25 (Separation Authority) of the applicant's DD Form 214 shows the entry "[Army Regulation] 635-200, [chapter] 3, [section] IV."  Item 26 (Separation Code) of his DD Form 214 shows the entry "JJD."  Item 27(Reentry Code) of his DD Form 214 shows the entry "4."  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 or a dishonorable 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 3-7a, 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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

10.  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.

11.  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.

12.  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 SPD's 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.

13.  Army Regulation 635-200 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.  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. Army Reserve.  Table 3-1 included a list of the Regular Army 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.

14.  The SPD/RE Code Cross Reference Table, dated 31 March 2003, 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 there are statements in his record of trial that have incorrect dates and the statements directly contradict themselves relate to evidentiary and legal matters that should have been addressed and conclusively adjudicated in the court-martial appellate process.

2.  Trial by court-martial was warranted by the gravity of the offenses charged.  The 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.

3.  The applicant's record of service included one general court-martial conviction for serious offenses and 835 days of lost time.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge or an honorable discharge.

4.  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)                                         AR20090011430



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ABCMR Record of Proceedings (cont)                                         AR20090011430



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