IN THE CASE OF:	  

		BOARD DATE:	    31 January 2012

		DOCKET NUMBER:  AR20110015743 


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 (BCD) to an under conditions other than honorable discharge
* upgrade of his reentry code (RE) from RE-4 to an RE allowing him to reenter military service

2.  The applicant states his discharge was based on one incident in nearly four years of continuous honorable service with no other adverse action.  He was court-martialed and pled guilty to the charge of involuntary manslaughter.  He negligently discharged his weapon and inadvertently killed a Soldier.  He takes full responsibility for his tragic lapse in safety protocol, and is sincerely sorry for the anguish he caused to the Soldier's family.  If the Army grants his request he will not fail again.  He seeks to atone for the pain he has caused the Soldier's family, his family, and the Army.  He feels that reentering the Army and emulating the Soldier as a leader and a friend is the best way to accomplish this goal. 

3.  The applicant provides a self-authored statement and a copy of his DD Form 214.

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 enlisted in the Regular Army and entered active duty on 
26 October 2004.  He held military occupational specialty 19K (M1 Armor Crewman).  The highest grade he held was corporal/E-4.

3.  His records show he was assigned to Fort Lewis, WA, and deployed with his unit to Bagdad, Iraq.

4.  On 16 April 2008, he was convicted by a general court-martial of one specification of manslaughter.  The court sentenced him to a BCD, confinement for 28 months, and reduction to private/E-1.  The automatic forfeiture of pay and allowances was deferred until action or release from confinement.  The convening authority approved his sentence on 13 November 2008.

5.  On 29 October 2009, the U.S. Army Court of Criminal Appeals affirmed the approved findings of guilty and the sentence.

6.  The U.S. Court of Appeals for the Armed Forces denied his petition for appeal on 14 January 2010

7.  General Court-Martial Order Number 9, issued by Headquarters, U.S. Army Armor Center and Fort Knox, Fort Knox, KY, on 11 February 2010, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the BCD executed. 

8.  He was discharged from active duty in pay grade E-1 on 3 June 2010 as a result of court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 3, and issued a BCD and an RE-4.  He was credited with completing 3 years, 10 months, and 29 days of net active service, 618 days of lost time due to confinement.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-11 states 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 sentence affirmed before it can be duly executed.

10.  Army Regulation 635-200, paragraph 3-7c, states a discharge under other than honorable conditions is an administrative separation under conditions other than honorable.  It may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial.  An under other than honorable conditions discharge will be directed only by a commander exercising general court-martial authority, a general officer in command who has a judge advocate or legal advisor available to their command, higher authority, and the commander exercising special court-martial convening authority over the Soldier who submitted a request for discharge in lieu of court-martial when delegated the authority to approve such requests for discharge.

11.  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.

12.  Army Regulation 601-210 (RA and Army Reserve Enlistment Program), covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the 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.  

* An RE–1 applies to persons who completed an initial term of active service who were fully qualified for enlistment when separated
* An RE-3 applies to persons who were not qualified for reentry or continuous service at the time of separation, but the disqualification was waivable
* An RE-4 applies to Soldiers separated from last period of service with a nonwaivable disqualification 

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was convicted by a general court-martial of one specification of manslaughter.  He was discharged on 3 June 2010 


pursuant to the approved sentence of a general court-martial.  His trial by court-martial was warranted by the gravity of the offense charged.  His conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterized the misconduct for which he was convicted.

2.  He provided no evidence to show his discharge is unjust or as a result of improper actions.  There is no error or injustice apparent in his record.  There is also no evidence his court-martial was unjust or inequitable.  He has not provided sufficient evidence or argument to show his discharge should be upgraded to an under other than honorable conditions discharge.  He was properly discharged in accordance with pertinent regulations with due process with no violation of his rights.

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.  Absent any mitigating factors, the type of discharge directed and the reasons were appropriate.  As a result, clemency is not warranted in this case.  In view of the circumstances in this case, he is not entitled to an upgrade of his discharge.

4.  An RE of 4 applies to persons who are not considered qualified for reentry or continuous service.  There is no error or injustice in his assigned RE.  The fact that he desires to reenlist in the Army is not sufficient justification for changing 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)                                         AR20110015743





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ABCMR Record of Proceedings (cont)                                         AR20110015743



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