IN THE CASE OF:	  

		BOARD DATE:	  25 October 2011

		DOCKET NUMBER:  AR20110006489 


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 upgrade of his bad conduct discharge to a general discharge and change of his reentry eligibility (RE) code to one that will allow him to reenter military service.

2.  The applicant states:

* At the time of his court-martial he had no prior civilian or military criminal record
* He was convicted of conspiracy to steal and sell military property along with another junior Soldier who was convicted months prior for stealing night vision goggles
* In exchange for a lesser sentence the other Soldier testified against him
* While in confinement he took several courses such as business finance, bookkeeping, and money management
* He is seeking to reenter military service through the Reserve Officers' Training Corps (ROTC) Program
* He is experiencing health issues

3.  The applicant provides no documentary evidence.


CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army (RA) on 31 August 2006 for a period of 3 years and 21 weeks.  He completed his training and he was awarded military occupational specialty 92Y (unit supply specialist).

2.  On 5 March 2008, he was convicted by a general court-martial of conspiring to steal and sell military property, selling military property (two specifications), and stealing military property.  He was sentenced to be reduced to E-1, to forfeit all pay and allowances, to be confined for 11 months, and to be discharged from the service with a bad conduct discharge.  On 20 May 2008, the convening authority approved the sentence.

3.  On 16 September 2008, the U.S. Army Court of Criminal Appeals affirmed the findings of guilty and the sentence.  On 10 December 2008, the U.S. Court of Appeals denied the applicant's petition for grant of review.  On 8 January 2009, the convening authority ordered the bad conduct discharge to be executed.

4.  On 10 April 2009, he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), chapter 3, as a result of a court-martial with a bad conduct discharge.  He had served 1 year, 10 months, and 23 days of creditable active service with 262 days of time lost.

5.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time shows in:

* Item 25 (Separation Authority) he was discharged under the authority of Army Regulation 635-200, chapter 3
* Item 26 (Separation Code) he was assigned the separation program designator (SPD) code of "JJD"
* Item 28 (Narrative Reason for Separation) he was separated by reason of "COURT-MARTIAL, OTHER"

6.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Chapter 3 states that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or a special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.


7.  Army Regulation 635-200, 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.

8.  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.

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 635-5-1 (SPD Codes) 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 is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, chapter 3, by reason of court-martial, other.  The SPD/RE Code Cross Reference Table stipulates that an RE-4 code will be assigned to members separated under these provisions with an SPD code of JJD.

11.  Army Regulation 635-200 further 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.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program), covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the U.S. Army Reserve (USAR).  Table 3-1 included a list of the RA RE codes:

	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 time of separation, but disqualification is waivable.  They are ineligible for enlistment unless a waiver is granted.

	c.  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.  His record of service included one general court-martial conviction and
262 days of time lost.  As a result, his record of service was not satisfactory.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable or a general discharge.

2.  Trial by court-martial was warranted by the gravity of the offenses 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.

3.  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.

4.  The applicant’s RE code was administratively correct and in conformance with applicable regulations at the time of his separation.  Therefore, there is no basis for granting the applicant's request to change his RE code.

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)                                         AR20110006489



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ABCMR Record of Proceedings (cont)                                         AR20110006489



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