BOARD DATE:	  16 November 2010

		DOCKET NUMBER:  AR20100011520 


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 bad conduct discharge be upgraded to a general discharge.  He further requests his reason for separation and reentry eligibility (RE) code be changed to allow his enlistment.

2.  The applicant states he believes his discharge was unjust and that he should have been returned to his unit after his court-martial.  He states he was an excellent Soldier and has been free of criminal activity since his discharge.  He further states that he never used drugs and is on the Dean's List for academic excellence.  He then states he regrets committing the crime of building an improvised explosive device and that he was young and foolish.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty), Air Assault and Airborne Course Certificates, Expert Infantryman Badge, Army Achievement Medal Certificate, and community college recognition for the Dean's List.

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 military records show that he enlisted in the Regular Army on 24 August 1993.  He completed initial entry training, was awarded the military occupational specialty of infantryman, and was promoted to pay grade E-5.

3.  On 22 August 1996, a general court-martial convicted the applicant of attempting to absent himself from his unit without authority and with the intent to remain away permanently; wrongfully possessing explosives; stealing 19 rounds of 7.62 millimeter live ammunition and 125 rounds of 5.56 millimeter blank ammunition, Property of the U.S. Army; and knowingly manufacturing and storing explosive materials without a license or permit to do so.  He was sentenced to a bad conduct discharge, forfeiture of all pay and allowances, reduction to E-1, and confinement for 6 months.  The sentence was approved.

4.  General Court-Martial Order Number 168 shows the appellate review was completed, the sentence was affirmed, and the sentence was ordered executed.

5.  Accordingly, on 20 January 1999, the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separations), chapter 3, section IV, as a result of a court-martial.  He was given a bad conduct discharge.  The DD Form 214 he was issued shows he completed 5 years and 3 days of active service.  Item 26 (Separation Code) contains the entry "JJD" and item 27 (Reentry Code) contains the entry "4."  Item 29 (Dates of Time Lost During This Period) contains the entry, "Under 10 USC 972:  19960701-19961121" [1 July 1996-21 November 1996].  The applicant was 23 years of age at the time of his discharge.

6.  Army Regulation 635-200, chapter 3 in effect at the time, provided that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review must have been completed and the affirmed sentence ordered duly executed.

7.  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 discharge with characterization of service of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

8.  Army Regulation 635-200 states 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.

9.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army, U.S. Army Reserve, and Army National Guard.  RE codes are used for administrative purposes and are not to be considered derogatory in nature.  Simply, RE codes are used for identification of an enlistment processing procedure.

	a.  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.

	b.  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.

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

10.  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 that SPD code "JDD" is the appropriate code to assign to Soldiers who are discharged due to court-martial.

11.  The SPD/RE Code Cross-Reference Table, dated 1 October 1993, shows the appropriate RE code for SPD code "JDD" is "4."

12.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge was unjust, that he was young and foolish, and details his excellent record since his discharge.  However, he was convicted of attempting to absent himself from his unit without authority and with the intent to remain away permanently, wrongfully possessing explosives, stealing both live and blank ammunition, and knowingly manufacturing and storing explosive materials without a license or permit to do so.  These are serious acts of misconduct and certainly warranted a bad conduct discharge.

2.  He was issued a bad conduct discharge pursuant to the approved sentence of a general court-martial.  The appellate review was completed and the affirmed sentence ordered executed.  His conviction and discharge were effected in accordance with applicable laws and regulations in effect at the time and the discharge appropriately characterizes the misconduct for which the applicant was convicted.

3.  The applicant's entire military record was taken into consideration; however, given the seriousness of the offenses his service is appropriately characterized.

4.  Records show he was approximately 20 to 21 years of age at the time of his offenses.  There is no evidence indicating the applicant was any less mature than other Soldiers of the same age who successfully completed their military service obligations.  Furthermore, he demonstrated the capacity for honorable service by completion of basic training and more than a year of service without an offense.

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 were therefore appropriate.  As a result, clemency is not warranted in this case.

6.  The applicant's RE code was assigned because he was separated under the provisions of Army Regulation 635-200), chapter 3, section IV, as a result of a court-martial.  The only valid SPD permitted for this separation is "JJD" and the appropriate RE code associated with this type of SPD at the time of his discharge was "4."

7.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  In order to justify correction of a military record, the applicant must show 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.  Therefore, he is not entitled to 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)                                         AR20100011520



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100011520



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1