BOARD DATE:	  15 June 2010

		DOCKET NUMBER:  AR20090020250 


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 the following:

	a.  upgrade of her bad conduct discharge to a general discharge;

	b.  change of her reentry eligibility (RE) code from an RE-4 to an RE-2 or
RE-3 so that she may reenter the U.S. Armed Forces; 

	c.  reinstatement of her rank from private (PV1)/E-1 to private first class (PFC)/pay grade E-3; and

	d.  to appear before a Military Board of Review at Fort Benning or Atlanta, GA to plead her case. 

2.  The applicant states, in effect, that she spent over 4 years in the Army and she found her discharge process demeaning.  She states she never received an Article 15 under the provisions of the Uniform Code of Military Justice (UCMJ).  She also believes she did not receive due process during the court-martial and subsequent discharge process.  She truly desires to return to active duty by serving in the Armed Forces and her current characterization of service and RE code prevent her from reentering military service.  She concludes her statement by saying that others committed the same crimes but they appeared to receive more lenient sentences and punishments.  

3.  The applicant provides the following documents in support of her application:

	a.  a DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 24 October 1990;

	b.  a newsletter article entitled "Heroes Helping Heroes" showing the applicant serving as a volunteer;

	c.  a most valuable employee program nomination form nominating the applicant for monthly championship driver in February 2006;

	d.  a completion certificate for SAFESTART, dated 1 October 2005, from Electrolab Training Systems;

	e.  a completion certificate for First Response Emergency First Aid, dated 17 February 2006; and

	f.  a course completion certificate for First Aid at Work, dated 26 October 2006.

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 for a 3-year period on 14 October 1986.  She completed basic and advanced individual training and she was awarded military occupational specialty 55B (Ammunitions Specialist).

3.  On 24 February 1987, the applicant was assigned to 60th Ordnance Company and she was stationed in the Federal Republic of Germany.  The applicant's records document no acts of valor or significant achievement.

4.  On 19 April 1989, the applicant was convicted by a general court-martial at Butzbach, Germany, under the authority of Headquarters, 3rd Armored Division, for 30 specifications of uttering fraudulent checks with insufficient funds during the period 28 October 1988 to 22 December 1988, one specification of intent to deceive by making a false statement on an official document, one specification of making false statements under oath with the intent to deceive, and one specification of wrongful use of a military identification card.  She was sentenced to reduction to PV1/E-1, forfeiture of all pay and allowances, and a bad conduct discharge.

5.  On 31 May 1989, the convening authority approved only so much of the sentence as provides for a bad conduct discharge, reduction to the lowest enlisted grade, and forfeiture of $466.00 per month until discharge is executed.  Pending appellate review, the applicant was placed in an excess leave status.

6.  The U.S. Army Court of Military Review affirmed the findings and the sentence.  On 7 September 1990, Article 71 of the UCMJ having been complied with, the bad conduct discharge was ordered executed.

7.  On 24 October 1990, the applicant was discharged accordingly.  Her net active service for this period was 4 years and 11 days and she was credited with 499 days of excess leave from 13 June 1989 to 24 October 1990.

8.  References:

	a.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.  Chapter 3, section IV, establishes policy and procedures for separating members with a dishonorable or bad conduct discharge and provides that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial and that the appellate review must be completed and the affirmed sentence ordered duly executed.

	b.  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.

	c.  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.

	d.  Army Regulation 601-210 (RA and Army Reserve Enlistment Program), covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the USAR.  RE codes are used for administrative purposes and are not to be considered derogatory in nature.  The RE codes are used for identification of an enlistment processing procedure.  Table 3-1 included a list of the RA RE codes:

		(1)  RE-1 applies to Soldiers completing their term of active service who 
are considered qualified to reenter the U.S. Army.  They are qualified for enlistment if all other criteria are met.

		(2)  RE-2 is no longer applicable and will not be used.

		(3)  RE-3 applies to Soldiers who are not considered fully qualified for 
reentry or continuous service at the time of separation, but the disqualification is waivable.  They are ineligible for enlistment unless a waiver is granted.

		(4)  RE-4 applies to Soldiers separated from their last period of active 
service with a nonwaivable disqualification.

	e.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides that the reasons for separating Soldiers from active duty and their corresponding SPD codes will be entered on the Soldiers' DD Forms 214.  It states the SPD code “JJD” is the appropriate code to assign to Soldiers who are discharged because of a court-martial.

	f.  The SPD/RE Code Cross-Reference Table shows the appropriate RE code for the SPD code of "JJD" is an RE code 4 for a bad conduct discharge.

	g.  Army Regulation 15-185 governs operations of the ABCMR.  Paragraph 2-11 of this regulation states that applicants do not have a right to a hearing before the ABCMR.  The regulation provides that the Director of the ABCMR or the ABCMR may grant a formal hearing before which the applicant, counsel, and witnesses may appear whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requested to appear before a Military Board of Review (i.e., the Army Discharge Review Board (ADRB)) at Fort Benning or Atlanta, GA to plead her case.  The ADRB is not empowered to review discharges as a result of a sentence by a general court-martial and, based upon the facts in this case and the evidence provided, it was determined that no formal hearing by the ABCMR was required.

2.  The evidence shows the applicant's trial by court-martial was warranted by the gravity of the offenses for which she was charged.  The conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which she was convicted.  Court-martial convictions and sentences are unique to each offender and are based upon the independent and individualized circumstances of the case.

3.  The applicant contends she served without any disciplinary infractions until her court-martial.  The applicant's entire record of service was considered.  There 
is no record or documentary evidence of acts of valor or significant achievement that would warrant special recognition.  Given the seriousness of the offenses for which she was convicted, her record was not considered sufficiently meritorious to warrant clemency in this case.  As a result, there is no evidentiary basis upon which to support the applicant's request to upgrade her discharge.

4.  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.

5.  The evidence of record shows the applicant's RE code was assigned based on her bad conduct discharge.  The only valid SPD code permitted for a bad conduct discharge is "JJD" and the appropriate RE code associated with this type of SPD code at the time of her discharge was then and still is an RE-4.  Therefore, she is not entitled to a change to her RE-4 to an RE-3.

6.  RE code 2 is no longer used.  Therefore, there is no relief on this portion of her request.

7.  In view of the foregoing, there is no basis for granting the applicant's requested relief.



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)                                         AR20090020250



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ABCMR Record of Proceedings (cont)                                         AR20090020250



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