IN THE CASE OF:	

		BOARD DATE:	  14 January 2010

		DOCKET NUMBER:  AR20090011704 


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, that his bad conduct discharge (BCD) be upgraded to a general discharge (GD) under honorable conditions and that his Reentry Eligibility (RE) code be changed to either an RE code of 2 or 3.

2.  The applicant states, in effect, his military record will show he never stayed in trouble or received any disciplinary write-ups.  He indicates he received numerous awards and certificates, he was promotable to sergeant (SGT), and he served 10 months in Bosnia.  He states he regrets his actions and he paid for his action by his freedom being taken away for 2 years.  He also states he lost the benefits he worked so hard to get.  He further states it is difficult to obtain good employment with his BCD and it makes it very hard to support his family.  He further states that if his BCD is upgraded he would like to enter the Army Reserve.

3.  The applicant provides in support of his request a self-authored statement, a letter from his U.S. Congressional Representative, a photograph, fifteen certificates, and a letter from the City of Satsuma, Alabama.

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 record shows that he enlisted in the Regular Army (RA) on    16 August 1994.  He was trained in, awarded, and served in military occupational specialty (MOS) 11C (Indirect Fire Infantryman).

3.  On 29 July 1997, a general court martial (GCM) found the applicant guilty, contrary to his plea, of violating the following Articles of the Uniform Code of Military Justice (UCMJ):  Article 128, assault with a means or force to produce grievous bodily harm; and for violating Article 78, by being an accessory after the fact to a murder, in order prevent the apprehension of another Soldier and for being an accessory after the fact of an assault with force to produce death or grievous bodily harm, in order to prevent the apprehension of another Soldier.  The sentence imposed was a forfeiture of $500.00 pay for 36 months, reduction to private (PV1)/E-1, confinement for 3 years, and a BCD.

4.  On 25 September 1997, in Headquarters, 1st Armored Division, GCM Order Number 23, the GCM convening authority approved only so much of the sentence that provided for a reduction to private PV1/E-1, a forfeiture of $500.00 pay per month for 30 months, confinement for 30 months, and a BCD.  The GCM convening authority also directed that, except for the part of the sentence extending to a BCD, the sentence would be executed.

5.  On 10 March 1999, the U.S. Army Court of Criminal Appeals affirmed the findings of guilty and the sentence pertaining to the applicant after having determined that they were correct in law and fact.

6.  Headquarters, U.S. Army Armor Center and Fort Knox, Kentucky, GCM Order Number 41, dated 28 March 2000, directed, Article 71(c) of the UCMJ having been complied with, that the BCD portion of the sentence be duly executed.  

7.  On 24 August 2000, the applicant was discharged accordingly.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he had completed a total of 4 years, 11 months, and 7 days of creditable active military service and that he had time lost due to confinement from 20 July 1997 to 15 August 1998.

8.  The DD Form 214 also shows that the applicant was separated, in the rank of PV1, under the provisions of chapter 3, section IV, Army Regulation 635-200, by reason of court-martial and that he received a BCD.  Item 26 (Separation Code) contains the entry “JJD” and item 27 (Reentry Code) contains the entry “4.”

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 provides the policies and procedures for separating members with a dishonorable or bad conduct discharge.  It stipulates, in pertinent part, that a Soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial, and that the appellate review must be completed and affirmed before the BCD portion of the sentence is ordered duly executed.

10.  Army Regulation 635-200, paragraph 3-7b, provides that a GD 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.  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 covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the US Army Reserve.  Chapter 3 of this regulation prescribes basic eligibility for prior service applicants for enlistment.  This chapter includes a list of armed forces RE codes, including RA RE codes.  RE-4 applies to persons who are ineligible for continued Army service.

13.  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 separating under the provisions of chapter 3, section IV, Army Regulation 635-200, by reason of court martial.  Additionally, Table 2-3 (SPD/RE Code Cross Reference Table) establishes RE-4 as the proper reentry code to assign Soldiers separated under this authority and for this reason.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his BCD should be upgraded to a GD because he was primarily a good Soldier and because he regrets and paid for his actions by losing 2 years of his freedom was carefully considered.    

2.  In this case, the evidence of record reveals no error or injustice related to the applicant’s court-martial conviction, and although he now regrets the actions that led to his BCD he does not deny committing the offenses for which he was convicted.  Given the gravity of the offenses that resulted in his GCM conviction and BCD, there is an insufficient evidentiary basis to support clemency in this case. 

3.  Further, the evidence of record confirms the applicant was separated under the provisions of chapter 3, Section IV, Army Regulation 635-200, by reason of 
court-martial conviction.  By regulation, separation under this provision of the regulation and for this reason mandated that he be assigned an RE code 
of 4 upon discharge.  Accordingly, the applicant's assigned RE code was and still is appropriate based on the authority and reason for his separation.

4. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

5.  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.  Given the applicant's undistinguished record of service and absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted in this case.


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)                                         AR20090011704



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ABCMR Record of Proceedings (cont)                                         AR20090011704



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