BOARD DATE:	  3 June 2014

		DOCKET NUMBER:  AR20130016277 


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 under other than honorable conditions discharge to a general discharge with appropriate separation and reentry codes.

2.  The applicant states his misconduct was the result of a manic bipolar condition that was diagnosed by Army psychiatrists at Walter Reed Army Medical Center immediately after the incident for which he was court-martialed and subsequently dismissed from the Service with an under other than honorable conditions character of service.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  On 20 May 2000, he accepted an appointment as a Military Police Corps, Reserve Commissioned Officer of the Army, in the rank/grade of second lieutenant (O-2/2LT).  He entered active duty on the same date.

2.  General Court-Martial (GCM) Order Number 1 published by the U.S. Army Installation Management Command (IMCOM), Fort McPherson, GA, dated 
17 October 2008 shows he was found guilty of the following charges and specifications:

	a.  Three specifications of Charge I, violating Article 133 of the Uniform Code of Military Justice (UCMJ) on 8 April 2007:
* followed a civilian, without authority, to said civilian's off-post residence and approached him falsely stating that he was both a courtesy officer/off-duty policeman
* recklessly drove his motor vehicle down an apartment complex parking garage in reverse, narrowly missing a motor vehicle, blocking in a car with two female occupants, and falsely stating he was an off-duty police officer
* falsely identified himself to Atlanta Police Department officers as a Federal agent working for the U.S. Army Criminal Investigation Command (CID) of the U.S. Defense Department

	b.  A single specification of Charge II, violating Article 128 of the UCMJ for approaching Mr. B with a drawn and visible pistol, a means likely to produce death or grievous bodily harm, on 8 April 2007.

3.  On 30 May 2008, he was sentenced to be dismissed from the service.  The convening authority approved the sentence but directed that it not be executed pending completion of appellate review.

4.  On 23 January 2009, the U.S. Army Court of Criminal Appeals affirmed the findings of guilty and the sentence.

5.  On 3 March 2010, the U.S. Army Court of Criminal Appeals affirmed the findings of guilty and the sentence.  The conviction became final on 16 June 2010 and the U.S. Court of Appeals for the Armed Forces denied the applicant's petition for a grant of review.

6.  On 7 October 2010, Headquarters, Department of the Army, issued General Court-Martial Order Number 13 (Corrected Copy) in response to the U.S. Army Court of Criminal Appeals Notice of Court-Martial Order Correction, dated 
3 March 2010.  This order found the applicant was convicted as follows:

	a.  Charge I, violating Article 133, UCMJ, three specifications of conduct unbecoming an officer and a gentleman; and 

	b.  Charge II, violating Article 128, UCMJ, one specification of assault.

7.  On 7 October 2010, the Assistant Secretary of the Army for Manpower and Reserve Affairs approved the sentence of dismissal and ordered it executed.

8.  HQDA General Court-Martial Order Number 13 further shows that, after completion of all required post-trial and appellate reviews, by order of the Secretary of the Army, the Chief of Staff, Army, ordered that the applicant "cease to be a member of the U.S. Army at midnight on 21 October 2010."
9.  On 21 October 2010, he was dismissed as a result of his GCM.  His DD Form 214 issued at the time shows he completed 10 years, 5 months, and 2 days of net active service.  Additionally, his DD Form 214 shows in:

* Item 23 the entry "Dismissal Or Discharge As Appropriate"
* Item 24 (Characterization of Service) the entry "Under Other Than Honorable Conditions"
* Item 25 (Separation Authority) the entry "AR 600-8-24, para 5-17"
* Item 26 (Separation Code) the entry "JJD"
* item 27 (Reentry Code) the entry "NA"
* Item 28 (Narrative Reason for Separation) the entry "Court Martial"

10.  His medical records are not available for review and the applicant did not provide documentation related to any medical diagnoses.

11.  Army Regulation 600-8-24 (Officer Transfers and Discharges) prescribes policies and procedures governing the transfer and discharge of Army officer personnel.

   a. Paragraph 1-21a provides that an officer will normally receive an Honorable characterization of service when the quality of the officer’s service has met the standards of acceptable conduct and performance of duty.  

   b. Paragraph 1-21b provides that an officer will normally receive an Under Honorable Conditions characterization of service when the officer's military record is satisfactory, but not sufficiently meritorious, to warrant an honorable discharge.

   c. Paragraph 5-17 provides that an officer convicted and sentenced to dismissal, as a result of GCM proceedings, will be processed pending appellate review of such proceedings.

12.  Army Regulation 635-5-1 (Separation Program Designator (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. The version of the regulation in effect at the time confirms the SPD code JJD was the appropriate code to assign officers separated by reason of Service initiated discharge or dismissal as a result of court martial conviction.

13.  Army Regulation 635-5 (Separation Documents) at the time established the standardized policy for preparing and distributing the DD Form 214.  It stated that item 27 reflects the RE code.  Army Regulation 601–210 determines Regular Army and U.S. Army Reserve reentry eligibility and provides regulatory guidance on the RE codes.  These codes are not applicable to officers, U.S. Military Academy (USMA) cadets who fail to graduate or enter USMA from active duty status, or to Reserve Component Soldiers being separated for other than cause.

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 Army Board for Correction of Military Records 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for correction of his DD Form 214 and upgrade of his under other than honorable conditions discharge to a general discharge with appropriate separation and reentry codes has been noted; however, there is insufficient evidence to support his request.

2.  Reentry codes are not applicable to officers.

3.  The evidence of record shows the applicant was court-martialed for assault and conduct unbecoming an officer and a gentleman.

4.  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.

5.  The evidence of record shows the applicant clearly abused his position as a military police officer and he was tried and convicted by a GCM as was warranted by the serious nature of the offenses.  He was sentenced to be dismissed from the Army.  The sentence is commensurate with the misconduct for which he was convicted.

6.  He contends, in effect, that his undiagnosed manic bipolar disorder led to his misconduct but there is no evidence in the available record and the applicant did not submit any evidence to support his contention.  Further, this issue could have been raised in the judicial and appellate process and finally adjudicated.

7.  Given the applicant's 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.

8.  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 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)                                         AR20130016277



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ABCMR Record of Proceedings (cont)                                         AR20130016277



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