IN THE CASE OF:	  

		BOARD DATE:	  11 December 2012

		DOCKET NUMBER:  AR20120009581 


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 reconsideration of his earlier request for an upgrade of his dishonorable discharge.  As a new issue, he also requests his reentry (RE) code changed. 

2.  The applicant states it was his first offense.  For 10 year of military service, he never had any nonjudicial punishment.  The military judge allowed evidence to be entered into [trial] when he should not have.  He was sent back to court in 1990 for this error.  He stated at the time that he desired no further military service and he only wanted to be released to go home to his family.  He wanted to stay in the Army but his military counsel told him he would go home if he signed the paper. 

3.  The applicant did not provide any evidence. 

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AC93-08042 on 4 August 1993.  

2.  The applicant does not meet the criteria for reconsideration in that his application is neither submitted within one year of the original decision nor contains any new evidence.  However, the new issue he raises is directly tied to the type of discharge he received.  As such, as an exception to policy, his request would be reconsidered. 
3.  The applicant enlisted in the Regular Army on 11 October 1978 and he held military occupational specialties 16D (HAWK Missile Crewmember) and 02U (Electric Bass Player).  

4.  He served through multiple reenlistments in a variety of stateside or overseas assignments, including Korea and Germany, and he attained the rank/grade of sergeant (SGT)/E-5.  He was assigned to Fort Benning, GA. 

5.  On 13 September 1989, court-martial charges were preferred against him for the charge and specification of wrongfully distributing cocaine.  

6.  On 13 December 1989, contrary to his pleas, he was convicted by a general court-martial of the charge and specification of wrongfully distributing cocaine on or about 21 August 1989.  The court sentenced him to confinement for 5 years, a reduction to private/E-1, and a dishonorable discharge.

7.  On 19 March 1991, the U.S. Court of Military Review affirmed the finding of guilty.  However, it ordered the sentence set aside and a rehearing be conducted.  

8.  On 17 April 1991, the U.S. Army Legal Services Agency forwarded the opinion together with the original record of trial to a new convening authority for a rehearing.  

9.  On 22 May 1991, the applicant submitted a voluntary request for discharge under Army Regulation 635-200 ((Personnel Separations), chapter 10, in lieu of trial by a court-martial.  The intermediate commander recommended disapproval while the senior commander recommended approval.  The convening authority disapproved the request and ordered trial by a general court-martial. 

10.  On 4 June 1991, he was convicted by a general court-martial of the charge and specification of wrongfully distributing 10.131 grams of cocaine.  The court sentenced him to a reduction to private/E-1, confinement for 2 years, and dishonorable discharge.

11.  On 26 June 1991, the convening authority approved only so much of the sentence as provided for confinement for time served (13 December 1989 to 16 April 1991) and the remainder of the sentence, and except for that part of the sentence extending to the dishonorable discharge, ordered it executed.  The record of trial was forwarded to The Judge Advocate General of the Army for appellate review.

12.  General Court-Martial Orders Number 82, issued by Headquarters, U.S. Army Disciplinary Barracks, Fort Leavenworth, KS, on 15 June 1992, show that, after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's dishonorable discharge sentence executed.

13.  The applicant was discharged from the Army on 2 July 1992.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged in accordance with Army Regulation 635-200, chapter 3, as a result of court-martial with a dishonorable discharge.  This document further shows he completed a total of 12 years, 2 months, and 29 days of creditable military service.  He had lost time from 13 December 1989 to 14 January 1991.  This form also shows in:

* Item 26 (Separation Code) - "JJD"
* Item 27 (RE Code) - "4"

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 governs the separation of enlisted personnel.  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.

	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 3-10, provides that a Soldier will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial and that a Soldier will be given a bad conduct discharge 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 (Separation Program Designator (SPD) Codes) states that SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  At the time of the applicant's separation, the "JJD" SPD was used in the cases of separation by reason of conviction by a court-martial.

17.  The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers.  This cross reference table shows the SPD code and the corresponding RE code.  At the time of the applicant's discharge, the cross reference table stated that an SPD code of "JJD" had a corresponding RE code of "4."

DISCUSSION AND CONCLUSIONS:

1.  The applicant was convicted by a general court-martial which was warranted by the gravity of the offense charged at the time.  The conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.  By law, any redress by this Board of the finality of a court-martial conviction 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.

2.  He was given a dishonorable discharge pursuant to an approved sentence of a general court-martial.  The appellate review was completed and the affirmed sentence ordered duly executed.  All requirements of law and regulation were met and his rights were fully protected.

3.  Based on his overall record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either a general or an honorable discharge.

4.  The evidence of record confirms that the applicant’s RE code was assigned based on the fact that he was discharged due to a court-martial conviction.  Absent his offense (distribution of cocaine), there was no reason to hold a court-martial.  The underlying reason for his discharge was his misconduct which led to his conviction by the general court-martial.  The only valid narrative reason for separation permitted under that paragraph is "As a result of court-martial" and the appropriate separation code is "JJD."  Such separation code had a corresponding RE code of "4" which is correctly shown on his DD Form 214. 

5.  Therefore, he is not entitled to any of the requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x___  ___x____  ___x____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  Regarding the characterization of service, 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 to amend the decision of the ABCMR set forth in Docket Number AC93-08042 on 4 August 1993.  

2.  Regarding the RE Code, 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)                                         AR20120009581





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ABCMR Record of Proceedings (cont)                                         AR20120009581



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