IN THE CASE OF:	  

		BOARD DATE:  22 March 2012

		DOCKET NUMBER:  AR20110017382 


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, in effect:

* an upgrade of his bad conduct discharge to a general discharge
* that his reentry (RE) code be changed from a "4" to a "3"

2.  The applicant states:

* he was court- martialed for an isolated incident after 2 years of service with no infractions, bad counseling statements, Article 15's, or any kind of  Uniform Code of Military Justice (UCMJ) action
* he was told he would receive an RE code of 3 throughout his court-martial and during the appeals process
* he never wanted to leave the military; he wanted to follow in the footsteps of family members who were veterans
* he deserved to have been punished, but not incarcerated
* his act was not an intentional crime, but rather irresponsibility
* he has accepted what happened; however, he never agreed with it
* he has turned his life around and became an emergency management technician and he is working towards going to the fire academy
* his first passion will always be the military



3.  The applicant provides a DD Form 293 (Application for Review of Discharge from the Armed Forces of the United States) with 25 attachments and extracts from his court-martial.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 17 February 2000.  He completed the training requirements and he was awarded military occupational specialty 11B (Infantryman).  The highest rank/grade he attained while on active duty was specialist/E-4.

2.  The applicant's complete discharge packet is unavailable.  However, the following information is available:

3.  General Court-Martial Order Number 10, Headquarters, 7th Infantry Division and Fort Carson, dated 2 April 2003, shows the following charges and findings:

   a.  Charge I.  Article 134.  Plea:  None Entered.  Although not specifically stated by the military judge, the charge was dismissed by the military judge prior to the plea as the offense charged was a lesser included offense of Charge II.  Finding:  None Entered.

The Specification:  Assault with intent to commit murder of Private First Class (PFC) J.L. on or about 9 December 2001.  Although not specifically stated by the military judge, the specification was dismissed by the military judge prior to the plea as the offense charged was a lesser included offense of Charge II.  Plea:  None Entered.  Finding:  None Entered.
      
   b.  Charge II.  Article 80.  Plea:  Not Guilty.  Finding:  Not Guilty of violation of Article 80, but Guilty of assault with a dangerous weapon in violation of Article 128, UCMJ.

The Specification:  Attempted murder of PFC J. L. by means of stabbing him multiple times with a kitchen knife.  Plea:  Not Guilty.  Finding:  Not Guilty of attempted murder under Article 80, UCMJ, but Guilty of assault with a dangerous weapon in violation of Article 128, UCMJ.
      
   c.  His sentence was adjudged on 19 November 2002.  He was sentenced to a reprimand, reduction to the rank/grade of private/E-1, total forfeiture of all pay and allowances, confinement for 18 months, and a bad conduct discharge.  The sentence was approved and except for the part of the sentence extending to a bad conduct discharge was executed.  He was credited with 43 days of confinement against the sentence to confinement.  He was reprimanded for misconduct of a discreditable nature.

4.  On 11 January 2006, the U.S. Army Court of Criminal Appeals affirmed the findings of guilty and sentence as approved by the convening authority.

5.  General Court-Martial Order Number 102, Headquarters, U.S. Army Armor Center, Fort Knox, KY, dated 1 July 2009, shows the applicant's sentence was affirmed and the approved sentence to a bad conduct discharge was ordered to be duly executed.

6.  On 25 September 2009, the applicant was accordingly discharged.  The
DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time shows he was discharged under the provisions of chapter 3, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), by reason of "court-martial, other."  Item 24 (Character of Service) shows his service was characterized as "bad conduct."

7.  The applicant provides:

   a. character letters attesting to his background and ability before, during, and after discharge; 

   b. identification cards and certificates showing course completion and certification as an Emergency Medical Technician, Medical Transportation Licensed Provider, and Radiological Emergency Management; 

   c.  certificates showing course completion of various courses which included Misdemeanor Crossroads, Adult Basic Education, Chemical Abuse Treatment Program, and Violent Offender Treatment Program;

   d. a letter showing he passed the Orange County Chief Firefighter Physical Ability Test;

   e. a letter from the Department of the Navy showing he was paroled on 14 November 2003; 

   f. a letter from the U.S. District Court, Central District of California, showing his period of supervision terminated on 5 April 2004; and

   g. transcribed extracts from his court-martial proceedings pertaining to various testimonies of events prior to and after the stabbing incident.

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 and policies, and procedures for enlistment and processing into the Regular Army and U.S. Army Reserve.  Table 3-1 includes a list of the Regular Army RE codes:

	a.  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.

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

10.  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.

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 Army Board for Correction of Military Records 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's request for an upgrade of his bad conduct discharge and a change of his RE code was carefully considered.

2.  The record does not show, nor has the applicant provided evidence showing, that the general court-martial proceedings against him were not conducted in accordance with law and regulations.  Although he states he was told he would receive an RE code of 3, the record shows the U.S. Court of Military Appeals affirmed his conviction.  He was assigned an RE-3 code in accordance with governing regulations based on his sentence to a bad conduct discharge.

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 nature of the applicant's misconduct and absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  The applicant has failed to provide sufficient evidence to merit an upgrade of his discharge as a matter of equity.  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 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)                                         AR20110017382



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110017382



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1