IN THE CASE OF:	

		BOARD DATE:	  23 March 2010

		DOCKET NUMBER:  AR20090012159 


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 his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected by:

	a.  upgrading his characterization of service from a bad conduct discharge (BCD) to a general under honorable conditions discharge (GD) in block 24 (Character of Service) (this is a reconsideration issue);

	b.  erasing the separation program designator (SPD) code in block 26 (Separation Code) and the reentry eligibility (RE) code in block 27 (Reentry Code), and deleting the narrative reason for separation in block 28 (Narrative Reason for Separation) and replacing it with "general under honorable conditions and/or medical discharge";

	c.  showing he completed the "Infantry School" in block 14 (Military Education); and

	d.  correcting block 19b (Nearest Relative) to show the second letter of his mother's surname as "D" vice "R" and her address as his current Springfield, MA, address.

2.  The applicant states Title 10, U.S. Code, section 1552, and/or Public 
Law 81-506 (Uniform Code of Military Justice) prohibits false and stigmatized code numbers from being placed upon service member's records (i.e., DD Form 214).  The applicant refers to court cases wherein service members were not afforded due process during administrative separation and their SPD codes were stigmatizing.  The courts ruled in favor of the former service members.

3.  The applicant continues that his BCD, if left unchanged, would cause undue pain and suffering, loss of employment opportunities and wages, and cause him unnecessary stigmatizing if the coding numbers were left on his DD Form 214. The applicant concludes that he was not given notice or a right to a hearing when the Chief, Transition Manager issued his DD Form 214.

4.  The applicant states he suffered from medical issues that occurred during his enlistment and he deserves a medical discharge as opposed to a BCD or any other punitive discharge.  The applicant further states his character of service should be upgraded since the general court-martial authority clearly stated the sentence is approved as adjudged "except that portion of the sentence extending to a BCD."  This, he contends, means that the sentence was amended and that the part extending to a BCD was not to be executed.  The applicant continues that he should not have been discharged with a BCD if the convening authority did not approve the BCD.

5.  The applicant provides copies of his DD Form 214; a citation relevant to Keef versus United States, 185th Court of Claims, 1968, and Casey versus United States, 8th Court of Claims, 1985; and a copy of a U.S. Army Infantry School diploma, dated 16 August 2002.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080013107 on 8 January 2009.

2.  The applicant provides a new argument in regard to his request to upgrade his discharge that will be considered by this Board.

3.  The applicant enlisted in the Regular Army on 2 May 2002 and was trained as an infantryman.  He was transferred to Germany for his first permanent duty assignment.

4.  On 17 January 2003, court-martial charges were initially preferred against the applicant.  After several amendments, he was charged with:  charge I for violation of Article 86 by being absent without leave (AWOL), charge II for violation of Article 90 by willfully disobeying a lawful command from a commissioned officer, charge III for violation of Article 128 by assault, and charge IV for violation of Article 134 by wrongfully communicating a threat.

5.  On 17 June 2003, the applicant pled not guilty to all charges and specifications before a military judge at a general court-martial.  The military judge found him guilty of charge I and its specification.  With respect to charge I and its specification, the military judge amended this specification by excepting the words and figures "8 January 2003" and substituting therefor the words and figures "6 January 2003" based on an unopposed government motion.  The military judge found him guilty of charge II and its specification.  With respect to Charge II and its specification, the military judge found him not guilty of the excepted words "at or" and "Schweinfurt."  The military judge found him guilty of charge III and its specification.  With respect to Charge III and its specification, the military judge found him not guilty of the excepted words, "attempting to strike her with a force or means likely to produce death or grievous bodily harm, to wit:  threatening to kill her and."  The military judge found him not guilty of charge IV and its specification.  The applicant was sentenced to a reduction to pay grade 
E-1, 24 months of confinement, and a bad conduct discharge.

6.  On 4 February 2004, the convening authority approved the sentence and, except for that part extending to a bad conduct discharge, ordered it executed.  The convening authority credited the applicant with 106 days of confinement against the sentence to confinement.

7.  Block 14 of the applicant's DD Form 214 contains no entry.  The applicant submitted a diploma showing he successfully completed infantry training.

8.  The applicant's service records contain a DD Form 93-E (Record of Emergency Data), dated 27 December 2002, which shows his mother's surname as _D____.  It shows her address as Box 6___, R____ N____ Street, Nairobi, Kenya.  His DD Form 214 shows his mother's surname as _R____ and her address as "6___, R____ N____ Street, Nairobi, South Africa 7____, Kenya."  There is no indication the applicant's mother resided anywhere other than Nairobi, Kenya, at the time of his discharge.

9.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, and release from active duty service or control of the Active Army.  It establishes standardized policy for preparing and distributing the DD Form 214.  It states the DD Form 214 is a summary of a Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge.  It further provides:
	a.  Block 14 will be used to list formal in-service (full-time attendance) training courses successfully completed during the period of service covered by the DD Form 214.  This information is to assist the Soldier in civilian job placement and counseling; therefore, training courses for combat skills will not be entered.

	b.  Block 19b should provide the name and address of a relative who will know the Soldier's location and address at all times.  The information in this block is derived from the Soldier's DD Form 93-E.

	c.  Block 24 will list one of the following:  honorable, under honorable conditions (general), under other than honorable conditions, bad conduct, dishonorable, or uncharacterized.

	d.  Block 26 is determined based on the regulatory authority and reason for separation.

	e.  Block 27 cross-references Army Regulation 601-210 (Active and Reserve Components Enlistment Program) and establishes reentry eligibility.

	f.  Block 28 is based on regulatory or other authority and can be checked against the cross-reference table in the regulation.

10.  The applicant's medical records are not available.

11.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 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 HD.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

12.  Army Regulation 635-200, paragraph 3-11, provides 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.

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  Paragraph 
4-2 states an enlisted Soldier may not be referred for or continue disability processing if under sentence of dismissal or punitive discharge.  If the sentence is suspended, the Soldier's case may then be referred for disability processing.  A copy of the order suspending the sentence must be included in the Soldier's records.

14.  Army Regulation 635-5-1 (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 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.

15.  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 processing into the Regular Army and the U.S. Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior-service applicants for enlistment.  That chapter includes a list of Armed Forces RE codes.

16.  The SPD/RE Code Cross Reference Table, dated 15 June 2006, shows that when the SPD is "JJD," an RE code of 4 will be given.  RE code 4 applies to persons not qualified for continued Army service and the disqualification is not waivable.

17.  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 by a court-martial convened under the UCMJ.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant seeks a "medical discharge" for unspecified medical issues.  The applicant's medical records are not available; therefore, there is no proof he ever had a medical condition which would have required physical disability processing.  In any event, the applicant was discharged with a BCD by reason of his conviction by a general court-martial.  In accordance with Army Regulation 635-40, disability processing is not permitted for Soldiers under sentence of dismissal or punitive discharge.  

2.  The applicant's records show he was discharged for bad conduct as a result of his conviction by a general court-martial.  The convening authority approved his bad conduct discharge, but ordered that it not be executed in the initial action as the discharge could not be executed until the appellate review of his case had been completed.  His conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.  Therefore, an upgrade of his discharge to general under honorable conditions is not warranted.

3.  Since the data in blocks 24, 26, 27, and 28 relates to the regulatory authority for his separation (i.e., Army Regulation 635-200, paragraph 3-11) found in block 25, these items are correct as shown.

4.  The applicant seeks additional administrative corrections to his DD Form 214 in the following areas:

	a.  block 14 to show his completion of infantry training.  Infantry training is a combat skill with no related civilian job benefit; it is not authorized for inclusion in block 14.  

	b.  block 19b to show his mother's correct surname and to show her address as his current Springfield, MA, address.  His DD Form 93-E shows his mother's surname as _D____, not _R____ as shown on his DD Form 214.  It also shows her address as Box 6___, R____ N____ Street, Nairobi, Kenya; not 6___, R____ N____ Street, Nairobi, South Africa 74001, Kenya, as shown on his DD Form 214.  These entries are incorrect and should be corrected; however, the address should not reflect his current Springfield, MA, address as that was not in effect at the time of discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X___  ____X___  ___X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION




BOARD DETERMINATION/RECOMMENDATION:

1.  In regard to the applicant’s new issues, the Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends the DD Form 214 of the individual concerned be corrected by:

	a.  deleting from block 19b (as found in block 18) his mother's surname of _R____ and address of 6___ R____ N____ Street, Nairobi, South Africa 74001, Kenya; and

	b.  adding the surname _D____ and address of Box 6___, R____ N____ Street, Nairobi, Kenya.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to:

	a.  changing blocks 24, 26, 27 and 28;

	b.  adding infantry training to block 14; and

	c.  changing his mother's address in block 19b to Springfield, MA.

3.  In regard to the applicant's request for reconsideration of his request to upgrade his discharge, the Board determined that the overall merits of this case are insufficient as a basis to amend the decisions of the ABCMR set forth in Docket Number AR20080013107 dated 8 January 2009.



	___________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)                                         AR20090012159



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ABCMR Record of Proceedings (cont)                                         AR20090012159



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