IN THE CASE OF:	  

		BOARD DATE:	  19 April 2011

		DOCKET NUMBER:  AR20100022556 


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 discharge be upgraded to honorable
* the reason for his discharge be changed to "convenience of the government"
* his reentry eligibility (RE) code be changed to RE-1 with a coordinating separation program number/designator code (SPD)

2.  He states:

	a.  During his time in the military he was a good Soldier, followed the rules and regulations, worked well with other Soldiers, excelled in what he was trained to do, and enjoyed doing his job.

	b.  He had minor problems went he first enlisted, but he got past them to become the best tank crewman he could be.

	c.  Due to his upbringing and sense of right, he ran into problems with his staff sergeant when the staff sergeant started harassing a black Soldier in his company.  He took offense to the way the staff sergeant was treating the black Soldier, he told his chain of command the truth, and the staff sergeant got into trouble and turned his aggression toward him.

	d.  He approached his chain of command and they did not help him so he left without authority.  He was absent without leave (AWOL) for 21 days and when he returned the harassment continued so he was AWOL again.

	e.  When he returned he was court-martialed and confined to the stockade.  His chain of command found that his allegations were true and told him he could be released and continue with his career.  He declined because he felt he had been through enough.  He was unwilling to undergo any further harassment, so he accepted the court-martial sentence.

	f.  As he matured, he has regretted his decision.  He wants to set the record straight and is applying for an upgrade.

	g.  He has been a model citizen since his discharge.  The punishment he received was a little severe and currently he would have not received this type of discharge.

3.  He provides a certificate of achievement.

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 record shows:

* he was born on 16 July 1963
* he enlisted in the Regular Army began on 1 May 1984 at the age of 20 years and 2 months

3.  He submitted a certificate of achievement for his outstanding performance from 4  through 7 October 1984.

4.  On 24 September 1986, he received nonjudicial punishment under the Uniform Code for Military Justice for wrongfully using marijuana between 9 June and 9 July 1986.

5.  On 30 September 1986, the applicant was convicted by a special court-martial under the authority of Headquarters, Fort Carson and 4th Infantry Division (Mechanized), for unauthorized absence from his unit from on or about 15 July to 7 August 1986 and from 8 August to 27 August 1986.

6.  The applicant was sentenced to be reduced to private/E-1, forfeiture of pay in the amount of $426.00 per month for 2 months, confinement for 2 months, and a bad conduct discharge.  The convening authority approved the sentence on 4 November 1986.  On the same date, the convening authority remitted the remaining confinement.

7.  On 30 December 1986, the U.S. Army Court of Military Review affirmed the findings of guilty, found the sentence correct in law and fact, and affirmed the sentence.

8.  On 3 April 1987, in accordance with Special Court-Martial Order Number 26 issued by Headquarters, Fort Carson and 4th Infantry Division (Mechanized), the applicant's sentence pertaining to his confinement having been served, his bad conduct discharge was ordered to be duly executed.

9.  On 11 May 1987, he was discharged accordingly.  His DD Form 214 shows:

* item 12c (Net Active Service this Period) – 2 years, 9 months, and 3 days
* item 24 (Character of Service) – "Bad Conduct"
* item 26 (Separation Code) – "JJD"
* item 27 (Reenlistment Code) – "4"
* item 28 (Narrative Reason for Separation) – "As a result of court-martial, other"
* item 29 (Dates of Time Lost During this Period) – "15 July to 6 August 1986 and 8 August to 19 October 1986"

10.  References:

	a.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for 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

	b.  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.  

	c.  Army Regulation 635-200 provides that an enlisted person will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review is required to be completed and the affirmed sentence ordered duly executed.

	d.  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.

	e.  Army Regulation 635-5 (Separation Documents) establishes the policies and procedures for completion and distribution of the DD Form 214.  It states that item 28 will list the narrative reason for separation based on regulatory or other authority and can be cross-referenced with Army Regulation 635-5-1 (Separation Program Designator Codes).

	f.  Army Regulation 635-5-1 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.  It states that the SPD code JJD, which is the SPD code shown on his DD Form 214, was the appropriate code to assign to Soldiers discharged under the provisions of Army Regulation 635-200 by reason of a bad conduct discharge.  The SPD/RE code Cross Reference Table stipulates that an RE-4 will be assigned to members separated under these provisions with an SPD code of JJD.

	g.  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 (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.  Chapter 3 prescribes basic eligibility for prior-service applicants for enlistment and includes a list of Armed Forces RE codes.

		(1)  RE-1 applies to Soldiers completing their terms 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-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable.  They are ineligible unless a waiver is granted.

		(3)  RE-4 applies to Soldiers who are separated from their last period of service with a nonwaivable disqualification.  They are ineligible for enlistment.

DISCUSSION AND CONCLUSIONS:

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

2.  Records show he was 22 years of age at the time of his offenses.  However, there is no evidence that indicates he was any less mature than any other Soldiers of the same age who successfully completed military service.

3.  The applicant's record is devoid of any evidence and he failed to provide evidence that shows he sought help from chain of command.  His record is also absent any evidence that his command knew his allegations were founded.

4.  His service record shows he received one Article 15 and was convicted by a special court-martial for being AWOL for a total of 42 days.  Therefore, there is no justification or reason to change the applicant's narrative reason for separation or to remove the narrative reason for his separation from his DD Form 214.

5.  The applicant's request that his RE code of "4" and SPD Code of "JJD" be changed is contingent on his reason for discharge and cannot be changed unless the applicant's narrative reason for discharge is changed.  The evidence of record confirms the applicant's separation processing was accomplished in accordance with the applicable regulation.  RE-4 applies to persons who are permanently disqualified for continued Army service.  By regulation, the RE-4 code and SPD code of JJD assigned to the applicant were the proper codes to assign to members separating under the provisions of Army Regulation 635-200 by reason of court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 
As a result, the RE-4 code and SPD code JJD were and still are appropriate.

6.  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 he was convicted, his 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 his discharge.

7.  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.

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)                                         AR20100022556



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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