IN THE CASE OF:	  

		BOARD DATE:	  15 July 2010

		DOCKET NUMBER:  AR20100000320 


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:

* Upgrade his bad conduct discharge (BCD) to a general discharge
* Change his narrative reason for separation to Convenience of the Government
* Upgrade his Reentry (RE) code of 4 to a 1

2.  The applicant states the following:

* It is an injustice for him to continue to suffer the adverse consequences of a BCD
* He was a young Soldier and he had only been married for a year
* His ability to serve was impaired because of marital problems
* He tried to seek emergency leave to deal with his marital problems, but his request was denied
* He was not advised of the right to request a hardship discharge

3.  The applicant provides a self-authored statement, DD Form 214 (Certificate of Release or Discharge from Active Duty), decision from the U.S. Army Court of Criminal Appeals, and five character references 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.  After having prior active and inactive service, the applicant enlisted in the Regular Army on 6 June 2000 at the age of 21.  

3.  His DA Form 2-1 (Personnel Qualification Record) shows he was absent without leave (AWOL) from 27 February to 28 February 2001.  His service record does not contain nonjudicial punishment for this period of AWOL.  

4.  On 20 May 2002, the applicant was found guilty by a general court-martial of being AWOL from 29 March 2001 to 11 January 2002.  He was sentenced to confinement for 8 months, to forfeit all pay and allowances, and to be discharged from the military with a BCD.  The general court-martial order indicates the applicant was given 4 days confinement credit.  

5.  On 5 November 2002, the convening authority approved the sentence and ordered it executed except for that part of the sentence extending to a BCD.  The portion of the sentence adjudging confinement in excess of 4 months was suspended for 4 months at which time unless the suspension was sooner vacated, the suspended portion of the sentence would be remitted without further action.  

6.  On 6 March 2003, the U.S. Army Court of Criminal Appeals affirmed the findings of guilty.  The sentence and the BCD were ordered to be executed on 5 November 2002.  

7.  The applicant was discharged on 28 November 2003 under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 3, section IV, as a result of court-martial.  He completed a total of 2 years, 4 months, and 19 days of creditable active service with approximately 394 days of lost time due to being AWOL and in confinement.
8.  His DD Form 214 shows he was assigned an RE code of 4 and a Separation Program Designator (SPD) code of "JJD."  

9.  The applicant provided a self-authored statement in support of his claim and stated the following:

* He made mistakes when he was younger
* He requested emergency leave to check on his wife but he was told he had not been in long enough to warrant approval of his leave
* He got on a bus and went to find his wife
* He turned himself in to New York State police 
* He has stayed out of trouble since he was released from the Army
* He can’t find a good job because of his military record
* He would like a better job so he can better support his family 

10.  The applicant provided character references in support of his claim and he was described as outgoing, caring, dependable, active in his community, and respectful.  

11.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Paragraph 3-11 of this regulation states that 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.

12.  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.

13.  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.

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 codes to be used for these stated reasons.  The regulation, in effect at the time, shows the SPD code of “JJD” as shown on the applicant’s DD Form 214 specifies the narrative reason as a result of court-martial, other and that the authority for discharge under this SPD code is “AR 635-200, paragraph 3-11."  Additionally, Table 2-3 (SPD/RE Code Cross Reference Table), in effect at the time, established the RE code of 4 as the proper RE code to assign to Soldiers discharged for this reason.

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 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.

16.  RE code 4 applies to persons not qualified for continued Army service and the disqualification is not waivable.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that it is an injustice for him to continue to suffer the adverse consequences of a BCD.  However, the evidence of record does not indicate that an error or injustice exists in this case.  

2.  The applicant’s contentions in regard to his marital problems and that he was a young Soldier at the time in question are acknowledged.  However, these issues are not sufficiently mitigating to warrant an upgrade of his BCD.  

3.  The applicant also contends he was not advised of the right to request a hardship discharge.  However, he provides no evidence to support his claim.

4.  The applicant's service record shows he was AWOL from 27 February to
28 February 2001 (2 days) and he was convicted by a general court-martial of being AWOL from 29 March 2001 to 11 January 2002 (298 days).  Based on the seriousness of the misconduct for which the applicant was convicted his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.

5.  The trial by court-martial was warranted by the gravity of the offense 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.

6.  The applicant's RE code is based on his reason for discharge and cannot be changed unless the applicant's narrative reason for discharge is changed.  His narrative reason for discharge was based on his court-martial conviction and there is no basis upon which this reason should be changed.  In view of the foregoing, there is no basis for granting relief in this case.

7.  The applicant’s character references were considered; however, these documents are insufficient as a basis to grant the relief requested.  

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)                                         AR20100000320



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100000320



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1