IN THE CASE OF:	  

		BOARD DATE:	  22 August 2013

		DOCKET NUMBER:  AR20130000425 


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 to honorable.

2.  The applicant states he believes the record to be unjust because of the decision of the appellate court, dated 29 July 1993.  

3.  The applicant provides a letter, dated 10 August 1993, from his appellate defense counsel. 

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 9 July 1985 for a period of 3 years.  He completed training and was awarded military occupational specialty 75B (personnel administration specialist).  On 18 April 1988, he was honorably discharged for immediate reenlistment.  He reenlisted on 19 April 1988 for a period of 4 years.

3.  Records show on 30 January 1992 he was convicted by a summary court-martial of using marijuana.

4.  On 18 August 1992, he was convicted by a special court-martial of using marijuana and behaving with disrespect toward a superior noncommissioned officer.  He was sentenced to be reduced to E-1, to forfeit $500 pay per month for 2 months, to be confined for 2 months, and to be discharged from the service with a bad conduct discharge.  On 20 November 1992, the convening authority approved the sentence.  

5.  On 29 July 1993, the U.S. Army Court of Military Review:

* set aside and dismissed the findings of guilty of charge 1 and its specification (marijuana use)
* affirmed the remaining findings of guilty (disrespect)
* affirmed only so much of the sentence as provided for confinement for two months, forfeiture of $500.00 pay per month for two months, and reduction to E-1

6.  He provides a letter, dated 10 August 1993, from his appellate defense counsel which states based on the decision of the court, dated 29 July 1993, his punitive discharge had been overturned.
 
7.  On 15 April 1994, the convening authority restored all rights, privileges, and property of which the applicant had been deprived by virtue of the findings of guilty and that portion of the sentence so set aside.

8.  There is no evidence in the available records which shows the Court or his commander determined his character of service. 

9.  His DD Form 214 (Certificate of Release of Discharge from Active Duty) shows in:

* Item 23 (Type of Separation) the entry "DISCHARGE"
* Item 24 (Character of Service) the entry "BAD CONDUCT"
* Item 25 (Separation Authority) the entry "AR (Army Regulation) 635-200, CHAP (Chapter) 3, SEC (Section) IV"
* Item 26 (Separation Code) the entry "JJD"
* Item 27 (Reentry Code) the entry "4"
* Item 28 (Narrative Reason for Separation) the entry "COURT MARTIAL, OTHER"

10.  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.  Chapter 4 provides for the discharge or release from active duty upon termination of enlistment, and other periods of active duty or active duty for training.  

	c.  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.

	d.  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.

11.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPD codes to be used for these stated reasons.  The regulation states the reason for discharge based on the separation code of JBK is completion of required active service is Army Regulation 635-200, chapter 4.  

12.  Pertinent Army regulations provide 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 processing into the Regular Army and the U.S. Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior-service applicants for enlistment.  That chapter includes a list of armed forces RE codes.  RE-1 applies to persons completing an initial term of active service who were fully qualified when last separated.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his bad conduct discharge should be upgraded was carefully considered and appears to have merit. 

2.  Evidence shows that in 1992 the applicant was convicted by a special court-martial of using marijuana and behaving with disrespect toward a superior noncommissioned officer.  He was sentenced to be reduced to E-1, to forfeit $500 pay per month for 2 months, to be confined for 2 months, and to be discharged from the service with a bad conduct discharge.  The convening authority approved the sentence.  
  
3.  In 1993, the U.S. Army Court of Military Review:

* set aside and dismissed the findings of guilty of charge 1 and its specification (marijuana use)
* affirmed the remaining findings of guilty (disrespect)
* affirmed only so much of the sentence as provided for confinement for two months, forfeiture of $500.00 pay per month for two months, and reduction to E-1

4.  In 1994, the convening authority restored all rights, privileges, and property of which the applicant had been deprived by virtue of the findings of guilty and that portion of the sentence so set aside.

5.  In the absence of evidence to the contrary, it appears his bad conduct discharge was set aside and the character of service reflected on his DD Form 214 is incorrect.  Therefore, his DD Form 214 should be amended to show he was honorably discharged.

6.  Based on the foregoing, it would be appropriate to correct his DD Form 214 to show in:

* item 23 – "DISCHARGE"
* item 24 – "HONORABLE"
* item 25 – "ARMY REGULATION 635-200, CHAPTER 4"
* item 26 – "JBK"
* item 27 – "1"
* item 28 – "COMPLETION OF REQUIRED ACTIVE SERVICE"

 BOARD VOTE:

____X___  ___X_____  ___X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  issuing him an Honorable Discharge Certificate, dated 25 May 1994; and

	b.  issuing him a new DD Form 214 to show in:

o Item 23 – "DISCHARGE"
o Item 24 – "HONORABLE"
o Item 25 – "ARMY REGULATION 635-200, CHAPTER 4"
o Item 26 – "JBK"
o Item 27 – "1"
o Item 28 – "COMPLETION OF REQUIRED ACTIVE SERVICE"




      _______ _   __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)                                         AR20130000425





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ABCMR Record of Proceedings (cont)                                         AR20130000425



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