BOARD DATE:	  February 25, 2010

		DOCKET NUMBER:  AR20090012521 


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 fully honorable discharge (HD) and that his reentry (RE) code be changed.  

2.  The applicant states, in effect, that he was only 18 years old when he was discharged from the Army.  He indicates that he is now 24 years old and more disciplined and would like the opportunity to reenter service and complete his enlistment.  

3.  The applicant provides no documentary evidence in support of his application. 

CONSIDERATION OF EVIDENCE:

1.  The applicant’s record shows that he enlisted in the Regular Army on 29 April 2003, at 18 years of age.  He successfully completed basic combat training and advanced individual training and was awarded military occupational specialty 21B (Combat Engineer).  

2.  The applicant's record shows that during his active duty tenure he earned the National Defense Service Medal and Army Service Ribbon.  His record documents no acts of valor of significant achievement.  


3.  On 25 February 2005, a general court-martial (GCM) found the applicant guilty of violating the following Articles of the Uniform Code of Military Justice (UCMJ) by committing the offenses indicated:  Article 89, by being disrespectful toward his superior commissioned officer; Article 112a (three specifications), by wrongfully using marijuana between 23 June and 22 July 2004, wrongfully using marijuana between 22 July and 9 August 2004 and wrongfully possessing marijuana on 11 September 2004; and Article 128, by unlawfully kicking a military police sergeant in the face and on his shin on 11 September 2004.  It also found him guilty of an additional charge of violating Article 112a of the UCMJ by wrongfully possessing some amount of marijuana on 19 September 2004.  The resultant sentence was forfeiture of all pay and allowances, 18 months of confinement, and a BCD.

4.  On 29 June 2005, the convening authority approved the sentence in Headquarters, 24th Infantry Division (Mechanized) and Fort Riley, Fort Riley, Kansas, GCM Order Number 17.1, and directed that all but the BCD portion be executed.  On 10 July 2006, the United States Army Court of Criminal Appeals affirmed the findings and sentence.

5.  Headquarters, United States Army Armor Center and Fort Knox, Fort Knox, Kentucky, GCM Order Number 35, dated 22 February 2007, directed, Article 71(c) of the UCMJ having been complied with, that the BCD portion of the sentence be duly executed.  On 15 June 2007, the applicant was discharged accordingly.

6.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to the applicant upon his discharge on 15 June 2007 shows he completed a total of 2 years, 4 months, and 2 days of creditable active military service.  Item 26 (Reentry Code) shows he was assigned the RE code of 4 and Item 27 (Separation Code) shows he was assigned the Separation Program Designator (SPD) code of JJD.  It also shows he was separated under the provisions of chapter 3, Army Regulation 635-200, by reason of court-martial and that he received a BCD.

7.  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.  

8.  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.

9.  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 that regulation prescribes basic eligibility for prior service applicants for enlistment.  That 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.

10.  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.  The SPD code of JJD is the appropriate code to assign members who are separated under the provisions of chapter 3, Army Regulation 635-200, by reason of court martial.  The SPD/RE Code Cross Reference Table establishes RE-4 as the proper reentry code to assign to Soldiers separated under this authority and for this reason and who are assigned the SPD code of JJD.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his BCD should be upgraded and his RE code changed to allow him to reenlist because he is now significantly more mature and better able to serve then during his first enlistment.  However, although he was 18 years old at the time of his enlistment, he successfully completed training, served for more than 2 years, and was nearly 20 years of age at the time he committed the offenses that led to his GCM and BCD.  As a result, it is clear he was sufficiently mature to serve successfully had he chosen to do so.  

2.  In this case, the evidence of record reveals no error or injustice related to the applicant’s court-martial and/or his subsequent discharge, and although he desires to reenter military service, he does not deny committing the offenses of which he was convicted that led to his BCD.  Further, his record documents no acts of valor or significant achievement.  As a result, given his undistinguished overall record of service and 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.  By regulation, members separated by reason of court-martial will be assigned the SPD code of JJD and an RE code of 4.  Given the applicant was discharged as a result of his GCM conviction, the SPD and RE codes he was assigned at discharge were and remain valid.  As a result, absent any evidence of error or injustice related to the discharge process, there is an insufficient evidentiary basis to support a change to his RE-4 code.  

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.

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)                                         AR20090012521



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ABCMR Record of Proceedings (cont)                                         AR20090012521


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