BOARD DATE:	  19 June 2012

		DOCKET NUMBER:  AR20110024697 


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) to fully honorable and a change to his reentry eligibility (RE) code.

2.  The applicant states he wants to reenter military service.

3.  The applicant provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant had prior honorable enlisted service in the Army National Guard from 21 January 1999 to 3 April 2005.

2.  The applicant enlisted in the Regular Army on 4 April 2005 for a period of 3 years.

3.  On 11 September 2006, the applicant was convicted of being absent without authority from 7 March to 5 April 2006 and from 6 April to 25 June 2006 pursuant to his plea by a special court-martial.  He was sentenced to forfeiture of $750.00 pay per month for 4 months and a BCD.

4.  On 1 March 2007, the convening authority approved the sentence, except the part extending to a BCD, and ordered it executed.

5.  On 25 June 2007, the U.S. Army Court of Criminal Appeals affirmed the findings and the sentence as approved by the convening authority.
6.  On 26 November 2007, the applicant's petition for a grant of review of the decision of the U.S. Army Court of Criminal Appeals was denied.

7.  Headquarters, U.S. Army Armor Center and Fort Knox, Fort Knox, Kentucky, Special Court-Martial Order Number 237, dated 12 December 2007, confirmed the applicant's court-martial sentence was affirmed.  The provisions of Article 71(c) having been complied with, the sentence was ordered duly executed.

8.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged with a BCD on 6 June 2008 under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 3, section IV, as a result of court-martial.

	a.  He completed 2 years, 10 months, 14 days of active service and he accrued 109 days of lost time under Title 10, U.S. Code, section 972.

	b.  Item 26 (Separation Code) shows separation program designator code "JJD."

	c.  Item 27 (Reentry Code) shows RE code "4."

9.  The applicant previously submitted a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) to the Army Discharge Review Board (ADRB) requesting an upgrade of his discharge and a change to his RE code.  On 23 July 2009, the ADRB determined the applicant's discharge and RE code were proper and equitable.  Accordingly, the applicant's request was denied and he was notified of the ADRB's decision.

10.  The applicant submitted a second DD Form 293 to the ADRB and requested reconsideration of his application requesting an upgrade of his discharge and a change to his RE code and personal appearance before the board.  On 12 July 2010, the ADRB determined the applicant's discharge and RE code were proper and equitable.  Accordingly, the applicant's request was denied, he was notified of the ADRB's decision, and informed that he had exhausted his appeals with the ADRB.

11.  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.

	a.  It shows that 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.

	b.  The SPD/RE Code Cross Reference Table stipulates that RE code 4 will be assigned to members who are separated with an SPD code of JJD and a BCD.

12.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) provides eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army, U.S. Army Reserve, and Army National Guard.  Table 3-1 contains a list of RE codes.  RE-4 applies to Soldiers separated from their last period of service with a non-waivable disqualification.  They are ineligible for enlistment/reenlistment.

13.  Title 10, U.S. Code, section 1552, the authority under which this Board acts, provides that the Board 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.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-7a states 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.

15.  Army Regulation 635-200, paragraph 3-7b, states 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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his BCD should be upgraded and his RE code should be changed because he wants to reenter military service.

2.  The applicant's trial by court-martial was warranted by the gravity of the offense for which he was charged.  His conviction and discharge were effected in accordance with applicable law and regulations and the applicant's rights were protected throughout the court-martial process, including his appeal.  The type of discharge he was given appears to have been and to be warranted given the length of his AWOL.

3.  Records show that RE code 4 establishing the applicant's ineligibility for enlistment/reenlistment was correctly entered on his DD Form 214 in accordance with governing Army regulations.  Therefore, the reentry code shown on his DD Form 214 is appropriate and correct.

4.  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 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)                                         AR20110024697



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ABCMR Record of Proceedings (cont)                                         AR20110024697



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