IN THE CASE OF:	  

		BOARD DATE:	  10 May 2012

		DOCKET NUMBER:  AR20110022000 


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:
 
* an upgrade of his bad conduct discharge (BCD)
* an upgrade of his reentry (RE) code
* that his basic combat training and language course be added to his 
DD Form 214 (Certificate of Release or Discharge from Active Duty)
* correction of his DA Form 4833 (Commander’s Report of Disciplinary or Administrative Action) to reflect the correct offenses and actions taken

2.  The applicant states:

* it was a solitary incident
* his conduct prior to and following the incident were within the traditions and expectations of the U.S. Army

3.  The applicant provides:

* DD Form 214 
* Report of Result of Trial
* DA Form 4833
* General Court-Martial Order Number 44
* 5 letters of support
* 4 pages of college transcripts
* DA Form 87 (Certificate of Training)
* Basic Training Completion Certificate
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 28 June 1988 at the age of     17 years, 11 months, and 23 days.  His records show he completed basic combat training at Fort Jackson, SC.  Upon completion of basic combat training, he was sent to the Defense Language Institute, Presidio of Monterey for language training.  The highest rank/grade he attained while serving on active duty was private/E-2.  However, he held the rank/grade of private/E-1 at the time of discharge.

3.  His record contains a Change in Student Status Form, which shows the applicant was disenrolled from language training on 6 April 1989 for disciplinary reasons associated with pre-trial confinement.  

4.  General Court-Martial Orders Number 44, issued by Headquarters, 7th Infantry Division (Light) and Fort Ord, CA, dated 14 August 1989, shows the applicant was initially charged with attempted murder, however, prior to arraignment trial counsel amended the specification to assault with a weapon likely to cause death or grievous bodily harm (a loaded 10-22 Ruger, semi-automatic weapon).  He pled guilty and he was found guilty of this specification.  He was also found guilty of resisting arrest, and unlawfully carrying a concealed weapon.  These orders also show the applicant's sentence was approved and the applicant was credited with 116 days in confinement against the sentence to confinement.

5.  His record contains General Court-Martial Order Number 34, issued by U.S. Disciplinary Barracks Combined Arms Command, Fort Leavenworth, dated 
5 February 1991, which shows the applicant was convicted by a general court-martial on 27 July 1989 and sentenced to a BCD, confinement for 30 months, a forfeiture of all pay and allowances, and reduction to private/E-1.  His sentence was affirmed, Article 71c had been complied with, and the BCD will be executed.
6.  His record contains a DD Form 214 which shows he was discharged on         1 March 1991 under the provisions of Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), chapter 3, as a result of court-martial with a BCD.  He completed 9 months of creditable active service with 698 days of time lost.  Additionally, this form shows in item 27 (Reentry Code) the entry "RE-4."

7.  The applicant provides a DA Form 4833, dated 7 August 1989, which lists his offenses as attempted murder and assault.  In the “Action Taken” section, the “Special Court-Martial” entry is annotated.

8.  The applicant also provides documentation showing his educational achievements in addition to several letters of character reference and/or recommendation from 1991. 

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3, in effect at the time, provided the policies and procedures for separating members with a dishonorable discharge or BCD.  It stated a Soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial and that the appellate review must be completed and affirmed before the sentence was ordered duly executed.

10.  Army Regulation 635-200 provides for the following characters of service:

	a.  Paragraph 3-7a states 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 states 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 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 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the U.S. Army Reserve.  It states, in pertinent part, 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.  Table 3-1 included a list of the Regular Army 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 unless a waiver is granted.

	c.  RE-4 applies to Soldiers who are not considered fully qualified for reentry or continuous services at time of separation, and the disqualification is not waivable.

13.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  The regulation directs, in pertinent part, that the purpose of the separation document is to provide the individual with documentary evidence of their military service.  It is important that information entered on the form should be complete and accurate.  Chapter 2 of Army Regulation 635-5 contains guidance on the preparation of the DD Form 214.  It shows the formal in-service (full-time attendance) training courses successfully completed during the period of service covered by the DD Form 214 and includes title, length in weeks, and year completed.  This information is to assist the Soldier in job placement and counseling; therefore, training courses for combat skills are not listed. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that the following action be taken:

* an upgrade of his BCD
* correction of his RE code
* addition of basic combat training and his language course to his DD Form 214 
* correction of his DA Form 4833 to reflect the correct offenses and actions taken

2.  The applicants' requests have been carefully considered and found to lack merit.

3.  By law, any redress by this Board of the finality of a court-martial conviction under the Uniform Code of Military Justice is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  The available evidence failed to establish a basis upon which clemency could be granted.  The applicant's documentation of his post-service education is noteworthy.  However, it is not sufficiently mitigating to support an upgrade of his discharge.

4.  The applicant's trial by court-martial was warranted by the gravity of the offenses charged.  His conviction and discharge were effected in accordance with applicable law and regulations.  Therefore, there is no legal basis for granting the applicant's request for relief. 

5.  The evidence of record confirms that the applicant’s RE code was assigned based on the fact that he was discharged as a result of a court-martial.  An 
RE code of "4" is the appropriate code for the applicant based on the guidance provided in applicable regulations for Soldiers being discharged under the provisions of chapter 3 of Army Regulation 635-200.  Furthermore, the RE code is consistent with the reason for discharge.  Therefore, he is not entitled to the requested relief.
 
6.  The available evidence shows the applicant completed basic combat training; however, by regulation, training courses for combat skills are not listed on the
DD Form 214.  In addition, the evidence shows the applicant was disenrolled from language training prior to completing the course; therefore, he is not entitled to correction of his records to show this course. 

7.  The record shows the applicant was initially charged with attempted murder; however, prior to arraignment trial counsel amended this specification to assault with a weapon likely to cause death or grievous bodily harm.  He was found guilty of this specification, resisting arrest, and unlawfully carrying a concealed weapon.  The DA Form 4833 was completed prior to the applicant’s court-martial conviction and it contains information that was available at the time.  The Army has an interest in maintaining the integrity of its records.  The data and information contained in the available records should reflect the conditions and circumstances that existed at the time the records were created; therefore, there is not a sufficiently compelling reason for compromising the integrity of the Army's records.


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)                                         AR20110022000



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ABCMR Record of Proceedings (cont)                                         AR20110022000



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