BOARD DATE:	  24 April 2012

		DOCKET NUMBER:  AR20110017771 


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 honorable discharge
* change of his narrative reason for separation to Convenience of the Government
* change of his Reentry Eligibility (RE) code from RE-4 to RE-1

2.  He states:

* he served 11 years as an exemplary Soldier 
* he had trouble at the end of his last tour and he was issued a BCD without fully understanding the negative effects of this action
* he believes the military was excessive in the issuance of a BCD
* he does not believe the punishments for his behavior fit the nature of his crime

3.  He provides:

* A self-authored statement
* His DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Four character reference statements
* His police record from the St. Johns County Sheriff's Office, St. Augustine, FL


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 on 25 October 1977.  On
2 October 1980, he was discharged for the purpose of immediate reenlistment.

3.  He reenlisted on 3 October 1980 and he continued to serve on active duty through subsequent reenlistments on 2 October 1984 and 1 October 1987.

4.  On 12 June 1989, the applicant was convicted by a general court-martial pursuant to his pleas of guilty of two specifications of issuing worthless checks in the amount of $550.00 from 3-8 March 1968 and $620.00 from 10-16 March 1989, with intent to defraud.  He was also found guilty of the additional charge of wrongfully using cocaine on 19 April 1989.  He was sentenced to a BCD, confinement for 40 months, forfeiture of all pay and allowances, and reduction to private (PV1)/E-1.

5.  On 2 August 1989, the convening authority approved only so much of the sentence as provided for a BCD, confinement for 25 months, forfeiture of all pay and allowances, and reduction to PV1/E-1.

6.  On 29 January 1990, the U.S. Court of Military Review:

	a.  affirmed only so much of the findings of guilty of charge I and its specifications as found that the appellant wrongfully and dishonorably failed to maintain sufficient funds in, or credit with the drawee bank, to pay the checks listed in the specifications in full upon their presentment, in violation of Article 134, Uniform Code of Military Justice (UCMJ);

	b.  affirmed the findings of guilty of the additional charge and its specification for wrongfully using cocaine; and

	c.  affirmed only so much of the sentence as provided for a BCD, confinement for 15 months, forfeiture of all pay and allowances, and reduction to PV1/E-1.

7.  A memorandum, dated 15 May 1990, shows the applicant was placed in an indefinite excess leave status pending completion of the appellate review of his case.

8.  On 21 September 1990, the U.S. Court of Military Appeals affirmed the decision of the Army Court of Military Review.  General Court-Martial Order Number 46, issued by the U.S. Disciplinary Barracks, U.S. Army Combined Arms Command, Fort Leavenworth, KS, dated 21 February 1991, Article 71(c) having been complied with, the BCD was ordered to be executed.

9.  He was discharged on 8 March 1991 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 3, paragraph
3-11, as a result of court-martial - other.  He completed 12 years, 4 months, and 20 days of creditable active service with 358 days of time lost.

10.  His DD Form 214 shows he was assigned an RE code of 4 and a Separation Program Designator (SPD) code of "JJD."

11.  He provided a self-authored statement in support of his claim wherein he stated:

* he was originally sentenced to 25 months, but the U.S. Court of Military "Appeals" thought the time was too excessive and reduced it to "5 1/2 months"
* he is married to a wonderful woman, raising a 15-year-old son, is a great provider, and is a mentor to his son and a young neighbor
* he was diagnosed with mesothelioma on 28 May 2010 
* he apologized for causing the Army, himself, and his family so much pain
* he desires a second chance to say he was a Soldier who was honorably discharged from the U.S. Army
* the BCD will hinder his chances to be involved in community politics
* his mother passed away 4 years ago and his siblings designated him as the executor of their mother's estate which demonstrates he is an honorable person

12.  He provided character reference statements from two friends, his wife, and his stepson.  In effect, they stated:

	a.  the applicant is a dependable worker as well as a very efficient and well-educated person.
	b.  the applicant is a kind person who volunteers to help the homeless and the less fortunate.  He is also a caring and dedicated person.

	c.  the applicant is a hard worker, mentor, and a generous man who cares about people other than his family.

	d.  the applicant continues to fight after he was diagnosed with cancer.

13.  He also provided booking information from St. John's County Sheriff's Office that indicates he was arrested on:

* 29 December 2001 for contempt of court
* 28 July 2002 for not having a valid driver's license
* 21 March 2006 for improper tag and driving while his license was suspended/revoked

14.  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.

15.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  It states under:

	a.  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.  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.

	c.  Paragraph 3-11, 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 affirmed sentence ordered duly executed.

16.  Army Regulation 635-5-1 (SPD) 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 of JJD is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, chapter 3, by reason of as a result 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 when a dishonorable or a BCD is directed.

17.  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 Regular Army (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.  The applicant’s contention that he served 11 years as an exemplary Soldier is acknowledged.  However, the evidence of record does not indicate that an error or injustice exists in this case.

2.  His service record shows he was convicted by a general court-martial of issuing worthless checks and an additional charge of wrongfully using cocaine.  Charge I was later modified to indicate he wrongfully and dishonorably failed to maintain sufficient funds in, or credit with the drawee bank, to pay the checks listed in the specifications in full upon their presentation.

3.  The 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.

4.  The applicant's RE code is based on his reason for discharge and cannot be changed unless the applicant's narrative reason for discharge is changed.  His narrative reason for discharge was based on his court-martial conviction and there is no basis upon which this reason should be changed.

5.  The applicant’s character references were also considered; however, these documents are insufficient as a basis to grant the relief requested.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20110017771



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ABCMR Record of Proceedings (cont)                                         AR20110017771



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