BOARD DATE:	  11 September 2012

		DOCKET NUMBER:  AR20120005013 


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 and change of his reentry eligibility (RE) code.

2.  The applicant states:

	a.  as a young black man from Chicago he has faced his share of adversity.  Through it all he has tried to stay prayerful and diligent.  He has always tried to be a positive role model for the youth.

	b.  he takes full responsibility for his actions in 2004 that changed the course of his life forever.  However, at the time he thought it was the best option.  He knows now there were other avenues available.

3.  The applicant provides:

* Character reference letters
* Discharge orders
* Letter from a doctor, dated 8 August 2007
* DD Form 214 (Certificate of Release or Discharge from Active Duty) 

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 was born on 5 March 1979.  He was ordered to active duty from the U.S. Army Reserve (USAR) on 7 December 2003 in support of Operation Iraqi Freedom.  He deployed to Kuwait.

3.  On 17 August 2007, he was convicted by a general court-martial of being absent without leave (AWOL) from 16 October 2004 (from Kuwait) to 18 May 2007 (arrested in Chicago, IL).  He was sentenced to be reduced to private (PV1)/E-1, to forfeit $867.00 pay per month for 12 months, to be confined for
40 days, and to be discharged from the service with a bad conduct discharge.  On 20 December 2007, the convening authority approved the sentence.

4.  The decision of the U.S. Army Court of Criminal Appeals is not available for review.  However, on 2 July 2008, the convening authority ordered the applicant's bad conduct discharge to be executed, indicating the sentence was affirmed.

5.  On 24 October 2008, he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), chapter 3, as a result of a court-martial with a bad conduct discharge.  He completed 2 years, 3 months, and 8 days of net active service this period with 4 months and 28 days of prior active service for a total of 2 years, 7 months, and 1 day of creditable active service with 945 days of time lost.

6.  The DD Form 214 he was issued at the time shows in:

* Item 25 (Separation Authority) he was discharged under the authority of Army Regulation 635-200, chapter 3
* Item 26 (Separation Code) he was assigned the separation program designator (SPD) code of "JJD"
* Item 28 (Narrative Reason for Separation) he was separated by reason of "COURT-MARTIAL, OTHER"


7.  He provided character reference letters from a fellow Soldier and friends who attest:

* He set the standard for a Soldier throughout his time in his section (9 July to 17 August 2007)
* He is a role model; kind and respectful
* He is a Christian 
* He is hard working, dependable, and trustworthy
* He is motivated

8.  He also provided a letter, dated 8 August 2007, from a doctor attesting a family member (most likely his grandmother) was hospitalized from 7 October 2004 to 16 October 2004.

9.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.

	a.  Chapter 3 states that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or a special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

	b.  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.

	c.  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.

9.  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.


10.  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.  It states that the 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, 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.

11.  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 USAR.  Table 3-1 included a list of the 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 contends he was a young black man.  However, age is not a sufficiently mitigating factor.  He was 24 years old when he was ordered to active duty.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military terms of service.  

2.  The character reference letters submitted on behalf of the applicant failed to show his discharge was unjust and should be upgraded.

3.  His record of service included a general court-martial conviction for being AWOL for 945 days.  As a result, his record of service was not satisfactory.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable or a general discharge.


4.  Trial by court-martial was warranted by the gravity of the offense (a more-than-two-year AWOL) 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.

5.  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 applicant's undistinguished record of service and absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted in this case.

6.  The applicant’s RE code was administratively correct and in conformance with applicable regulations at the time of his separation.  Therefore, there is no basis for granting the applicant's request to change 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)                                         AR20120005013



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ABCMR Record of Proceedings (cont)                                         AR20120005013



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