IN THE CASE OF:	  

		BOARD DATE:	  31 March 2011

		DOCKET NUMBER:  AR20100021948 


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 an upgrade of his bad conduct discharge and a change to his reentry eligibility (RE) code of "4."

2.  The applicant states he was 18 years of age when he enlisted in the Army and did not know much about living on his own.  He fell in with the wrong crowd and began abusing alcohol and drugs.  He was young, impressionable, and fell victim to these destructive behaviors.  He was court-martialed on 13 August 2001 and sentenced to 5 months of confinement and was subsequently separated with a bad conduct discharge.  During the appellate process it was determined that some errors were made in his trial and most of the charges against him were overturned.  The appellate process was completed on 19 October 2004.  He is now 29 years of age and has turned his life around.  He has been sober for 5 years, is currently enrolled in a nursing program, and wants to enlist to complete his obligation.  He has made great changes in his life since he was an unwise 18-year old and believes this is a giant step in completely turning himself around and becoming a productive citizen.

3.  The applicant provides no additional documentation.

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 records show he was 18 years of age when he enlisted in the Regular Army on 17 June 1999.  He held military occupational specialty 21B (Combat Engineer).

3.  Headquarters, 1st Cavalry Division, Fort Hood, TX, General Court-Martial Order Number 30, dated 23 May 2003, shows he pled guilty at a general court-martial to one specification of wrongful distribution of marijuana, four specifications of wrongful use of marijuana, and one specification of wrongful use of Ecstasy.  He had been found guilty of all specifications and sentenced on 30 July 2001 to confinement for 5 months, forfeiture of all pay and allowances, and a bad conduct discharge.

4.  On 23 May 2003, the convening authority approved only so much of the sentence as provided for a bad conduct discharge and, except for the bad conduct discharge, ordered it executed.

5.  On 17 March 2004, the U.S. Army Court of Criminal Appeals found errors with the court-martial proceedings.  The court rejected the guilty plea for five specifications of possession.  Regarding the sentence, the court stated the applicant had received a field grade Article 15 for marijuana use that was separate from the offenses before the court and that he had requested a bad conduct discharge in lieu of confinement which was approved by the convening authority.  The court set aside the findings of guilty on four specifications of wrongful use of marijuana and one specification of wrongful use of Ecstasy and affirmed the findings of guilty of wrongful distribution of marijuana.  The court affirmed the approved bad conduct discharge.

6.  Headquarters, U.S. Army Armor Center and Fort Knox, Fort Knox, KY, General Court-Martial Order Number 137, dated 16 July 2004, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's bad conduct discharge sentence executed.

7.  On 19 October 2004, he was discharged from the Army.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 3, as a result of court-martial with a bad conduct characterization of service.

8.  This form further shows he received a separation code of JJD, an RE code of 4, and he completed 4 years, 11 months, and 23 days of creditable military service with 126 days of lost time due to confinement.

9.  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.

10.  Army Regulation 635-200 sets forth the basic policy governing the separation of enlisted personnel.  Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

11.  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.

12.  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.  Table 3-1 includes a list of Regular Army RE codes.  An 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.  An RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at the time of separation, but disqualification is waivable.  They are ineligible unless a waiver is granted.  An RE-4 applies to Soldiers separated from their last period of service with a nonwaivable disqualification.

13.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  The SPD code "JJD" is the correct code for Soldiers discharged under the provisions of Army Regulation 635-200, chapter 3.  The SPD code "JJD" has a corresponding RE code of "4."

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows his trial by a general court-martial was warranted by the gravity of the offenses charged.  His conviction for wrongful distribution of marijuana and discharge were effected in accordance with applicable law and regulations and his discharge appropriately characterized the misconduct for which he was convicted.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

2.  After a review of the applicant's record of service, it is clear his service did not meet the criteria for an honorable discharge or a general under honorable conditions discharge.  Therefore, there is insufficient basis to upgrade his discharge.

3.  His RE code was assigned based on his discharge under the provisions of Army Regulation 635-200, chapter 3, with an SPD of "JJD."  The RE code associated with this type of discharge is "4."  Therefore, he received the appropriate RE code associated with his discharge.

4.  Records show that he was almost 20 years of age at the time of his offenses.  However, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.

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 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)                                         AR20100021948



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ABCMR Record of Proceedings (cont)                                         AR20100021948



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