IN THE CASE OF:	  

		BOARD DATE:	  24 June 2014

		DOCKET NUMBER:  AR20130016425 


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 his records be corrected by:  

	a.  changing his Reentry Eligibility (RE) code from RE-4 to RE-2;

	b.  granting clemency on the portion of the sentence that reduced him to the rank/pay grade “PV1/E-1” (i.e., PV2/E-2);

	c.  reinstating his final rank/pay grade to sergeant (SGT)/E-5 (or possibly staff sergeant (SSG)/E-6); 

	d.  reinstating his military occupational specialty (MOS) of 31B2P (Military Police) and the service years in that MOS; and

	e.  correcting his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 12 March 2008 to show his combat duty in Afghanistan.

2.  He states:

	a.  his RE code was the result of a bad conduct discharge (BCD).  It was upgraded to general under honorable conditions on 9 February 2009 by order of the Army Discharge Review Board (ADRB).  


	b.  his RE code causes negative results when applying for jobs with military savvy employers.

	c.  his RE code and the continuous negative effects of it are unjust given the ADRB findings and subsequent character upgrade.  

	d.  the sentencing authority made the recommendation to the convening authority to keep him on active duty.  He believes that if he had remained on active duty, he would have reestablished his former rank/pay grade of SSG/E-6 given his skills, awards, performance, and education by this point in time.  This also causes negative responses with employers and he feels it is unjust due to the sentencing authority's recommendation for him to remain on active duty.  

	e.  he was on the promotion standing list for sergeant first class (SFC)/E-7 at the time of the incident and would have been promoted prior to the court-martial if favorable personnel actions were not suspended during that time.  

	f.  he was stripped of his MOS at sentencing.  He feels this, too, was unjust given the findings and reasoning of the ADRB.  This also unduly affects him in his profession.

	g.  he served in Afghanistan from 21 December 2001 through August 2002.  This is not reflected on his current DD Form 214.

3.  He provides:

* Self-authored statement, dated 29 August 2013
* Five DA Forms 2166-8 (Noncommissioned Officer Evaluation Report (NCOER))
* DD Form 214 for the period ending 12 March 2008
* Orders 063-1, dated 3 March 2008, awarding him primary MOS 11B1O (Infantryman)
* ADRB - Case Report and Directive, dated 2 February 2009
* Memorandum, Subject Staff Judge Advocate's Recommendation in the Special Court-Martial Case of United States v. SSG (applicant's name), page 1
* Two letters of support
* Memorandum, Subject:  Request for Clemency under Rules for Courts-Martial (R.C.M.) 1105/1106, U.S. v. SSG (applicant's name), dated 15 May 2007
* Orders 353-28, dated 19 December 2001, deploying him to U.S. Central Command in support of Operation Enduring Freedom with by-name listing
* Amendment Orders, dated 26 December 2001
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 22 October 1985.  At the completion of basic and advanced individual training (AIT), he was awarded MOS 95B (Military Police) (this MOS was later converted to 31B).  

3.  Orders 65-9 dated 23 March 1989 show he was promoted to SGT and was awarded MOS 95B2O.  

4.  He was honorably released from active duty (REFRAD) on 4 December 1991 in the rank/pay grade of SGT/E-5.  On the following date, he was transferred to a Reserve unit.  His DD Form 214 issued for this period shows his primary MOS as 95B2O and that he held this MOS for 5 years and 9 months.

5.  On 3 January 1994, he enlisted in the Army National Guard in pay grade E-5.  He was honorably discharged on 2 July 1998 at his expiration of term of service.  His National Guard Bureau (NGB) Form 22 shows he was discharged in the rank/pay grade of SGT/E-5 and his primary MOS is listed as 95B2O.  

6.  He enlisted in the Air Force Reserve on 25 August 1998 in pay grade E-5 and was discharged on an unknown date in 1999.

7.  He enlisted in the RA again on 25 February 1999 in pay grade E-4 and MOS 95B.

8.  His service record contains Permanent Orders 199-270, dated 18 July 1999, which show he was awarded the Parachutist Badge and MOS 95B1P on 23 July 1999.  

9.  He was promoted to SGT/E-5 (MOS skill level 2) on 1 September 1999 and to SSG/E-6 (MOS skill level 3) on 1 July 2000.
10.  A review of his personnel documents in the interactive Personnel Electronic Records Management System (iPERMS) revealed his NCOER for the period covering September 2001 through August 2002 which indicates he performed duties while deployed to Afghanistan 

11.  His DA Form 2-1 (Personnel Qualification Record - Part II) indicates he was credit with foreign service in:

* Kosovo from 5 May 2000 to 4 December 2000
* Afghanistan from 1 December 2001 to 5 July 2002
* Iraq from 12 January 2004 to 5 January 2005

12.  On 16 November 2006, he was convicted by a special court-martial of violating a lawful general regulation by wrongfully engaging in a personal and social relationship with a trainee and wrongfully having sexual intercourse with a woman not his wife.  He was sentenced to a reduction to pay grade E-2, confinement for four months, and a bad conduct discharge (BCD).  

13.  On 1 November 2007, the BCD was ordered to be executed.  He was discharged on 12 March 2008 under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 3, by reason of court-martial, other with issuance of a BCD.  He completed 8 years, 9 months, and 15 days of creditable active service during this period with about 93 days of lost time.  Additionally, he completed 6 years, 1 month, and 13 days prior active service and 6 years, 4 months, and 17 days prior inactive service.

14.  Section I (Assignment Information) of his Enlisted Record Brief shows his primary MOS as 31B and his additional skill identifier (ASI) as 2B.  

15.  He was issued a DD Form 214 for the period ending 12 March 2008 which shows in:

   a.  Items 4a (Grade, Rate or Rank) and 4b (Pay Grade) his rank/pay grade as PV1/E-1.
   
   b.  Item 11 (Primary Specialty (List number, title and years and months in specialty.  List additional specialty numbers and titles involving periods of one or more years.)) his primary specialty as 31B for 0 years and 0 months.
   
   c.  Item 12f (Foreign Service) he was credited with 1 year, 6 months, and 6 days of foreign service.

   d.  Item 12h (Effective Date of Pay Grade) his effective date of pay grade as 30 November 2006.
   
   e.  Item 18 (Remarks) he served in Kosovo from 28 May to 9 December 2000 and in Iraq from 12 January 2004 to 5 January 2005.

   f.  Item 26 (Separation Code) he was assigned a Separation Program Designator (SPD) code of "JJD."  
   
   g.  Item 27 (Reentry Code) he was assigned an RE code of "4."

16.  He provided the following documents which indicate:

	a.  Orders 353-28, dated 19 December 2001, reassigned him among other Soldiers to the U.S. Central Command area of responsibility (AOR) in support of Operation Enduring Freedom with a reporting date of 21 December 2001 for 179 days.  His name is on the by-name listing and shows his MOS 95B3P.  

	b.  NCOER for the period ending March 2003 shows his rank as SSG and primary MOS as 95B3P.  His duty MOS is listed as 95B4O.  His overall potential for promotion and/or positions of greater responsibility was rated as "Among the Best" and overall performance "Successful"/block 1 and "Superior"/block 1.  

	c.  NCOERs for the periods ending December 2003, August 2004, April 2005, and December 2005 show his rank as SSG and primary MOS as 31B3P.  His duty MOSs are listed as 31B4O and 31B4PH3.  His overall potential for promotion and/or positions of greater responsibility were all rated as "Among the Best" and overall performance "Successful"/block 1 and "Superior"/block 1.  

	d.  Memorandum, Subject Staff Judge Advocate's Recommendation in the Special Court-Martial Case of United States v. SSG (applicant's name), dated 12 April 2007, the sentencing authority recommended the convening authority consider suspending the BCD and the applicant a probationary term to determine whether his is salvageable.  

	e.  Memorandum, Subject:  Request for Clemency under Rules for Courts-Martial (R.C.M.) 1105/1106, U.S. v. SSG (applicant's name), dated 15 May 2007, Defense Counsel requested clemency under R.C.M. 1105/1106.  Counsel requested the portion of the applicant's court-martial pertaining to a BCD was too harsh and requested the applicant be granted the opportunity to recover from this unfortunate incident.

   f.  Orders 063-1 dated 3 March 2008 awarded him primary MOS 11B1O and withdrew his primary MOS 31B1O, effective 1 November 2007.

	g.  ADRB - Case Report and Directive (page 3), dated 2 February 2009, the ADRB determined that the characterization of service was too harsh, and clemency was warranted based on the overall length and quality of the applicant's service including combat and numerous letters of recommendations.  Accordingly, the ADRB voted to upgrade the applicant's characterization of service to general under honorable conditions.  A change in the reason for discharge was not authorized under Federal statute.  The ADRB voted unanimously to leave his grade, reason for separation, and RE code unchanged.

	h.  Two letters of support from his Command Sergeant Major and Regimental Sergeant Major recommending his BCD be upgraded to a general discharge.  They attested to his honorable service, duty performance, and deployments to Iraq and Afghanistan.  

17.  He provided a self-authored statement, dated 29 August 2013, in which he stated:

	a.  he was a Senior Drill Sergeant and was still legally married; however, his wife at the time did not accompany him on his permanent change of station (PCS) move to Fort Leonard Wood.  She stayed behind at Fort Bragg and was in the process of filing for divorce when the event occurred.  

	b.  the other person involved in this incident was a 21-year old trainee who had completed AIT and was awaiting PCS.  

	c.  a Regimental Command Sergeant Major noted in his letter of support that this was not the kind of situation that called for the types of punishment Drill Sergeants received.  

	d.  this was an unintentional meeting between him and the Soldier.  They were both intoxicated at the time and he didn't realize he was dealing with issues resulting from his deployment to Iraq.

	e.  several high ranking individuals testified on his behalf and attested to his honor and his service, including his Brigade Commander and Command Sergeant Major at Fort Bragg, who he served with on their staff during the deployment to Iraq.  

	f.  he explained his story to the ADRB and they agreed unanimously that his prosecution was too severe and upgraded his discharge to general under honorable conditions.  

	g.  he served on the Brigade Staff and filled a master sergeant (MSG) position as a SSG.  His two previous assignments were above his E-6 pay grade.  He served as a Squad Leader in a line unit as a Specialist and was promoted quickly to SSG in that position.  As a Squad Leader, he deployed his squad twice to hostile areas.

	h.  his psychiatrist at the Department of Veterans Affairs (VA) compared his prosecution to "judicial malpractice" because of the severity of his head injury and the proximity of time to the injury and the incident.  

	i.  he's a good man who made singular bad choice in a compromised state of mind.  He's not only remorseful about the incident, but he betrayed the trust and confidence so many had in him.  He was a great Drill Sergeant and loved it.  He also loved being an NCO and genuinely cared for all of his Soldiers.  

	j.  this situation would have merited a Field Grade Article 15 and removal from the promotion list.  He's not working and is trying to finish his bachelor's degree.  

18.  The Defense Finance and Accounting Service (DFAS) confirmed the applicant received hostile fire/imminent danger pay (HF/IDP) and combat zone tax exclusion (CZTE) from 28 May through 7 December 2000 for Macedonia and from 21 December 2001 to 10 July 2002 for Uzbekistan.  

19.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Paragraph 3-11 of this regulation states that a Soldier will be given a BCD 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.

20.  Army Regulation 635-5-1 (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, in effect at the time, shows the SPD code of “JJD” as shown on the applicant’s DD Form 214 specifies the narrative reason as a result of court-martial, other and that the authority for discharge under this SPD code is “AR 635-200, paragraph 3-11."  


21.  Army Regulation 635-200 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 (Regular Army and Army Reserve Enlistment Program), dated 7 June 2007, covers eligibility criteria, 
policies, and procedures for enlistment and processing into the Regular Army and the U.S. Army Reserve.  Table 3-1 included a list of the RA 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-2, 2B, and 2C apply to Soldiers separated prior to the effective date of this regulation.  These codes will not be used.  Qualified for enlistment provided reason and authority does not preclude enlistment or require a waiver.  

	c.  RE-2A applies to Soldiers separated prior to the effective date of this regulation but did not meet reentry criteria at time of separation.  They are ineligible unless a waiver is granted.

	d.  All RE-2 codes were rescinded effective 1995.

   e.  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 unless a waiver is granted. 

	f.  RE-4 applies to Soldiers who are separated from their last period of service with a nonwaivable disqualification.  They are ineligible for enlistment.

22.  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.

23.  Army Regulation 611-201 (Enlisted Career Management Fields and MOS) prescribes the enlisted MOS classification structure of the U.S. Army.  Career management fields in this regulation are the basis for the management of enlisted personnel.  

   a.  The MOS code consists of nine characters:

   (1)  First three characters - These are 3-character MOS.  Two numbers 
and one letter that identify the MOS with regard to level of skill.
   
   (2)  Fourth character - This is a number.  With the first three characters, it 
shows skill and grade level in the MOS.
   
   (3)  Fifth character - This will be a letter or a number.  It shows special 
qualifications identifiers (SQI) common, to a number of positions and MOS.  

   (4)  Sixth and seventh characters - These characters show additional skill 
identifiers (ASI).  They will be an alpha-numeric or numeric-alpha combination.  They are used to identify special skills closely related to, but in addition to, those in the basic MOS. 
   
   (5)  Eighth and ninth characters - These are 2-letter combinations that 
identify foreign language requirements and qualifications.  
   
	b.  Skill level identifies skills, proficiency, or ability typically required for successful performance at the grade with which the skill level is associated.  There is a direct relationship between Grade and skill level, without regard to nonsupervisory and supervisory skills.  Each skill level identifies positions in the following authorized grade: 

   (1)  Skill level 1-PFC and SPC. 
   
   (2)  Skill level 2-SGT. 
   
   (3)  Skill level 3-SSG. 
   
   (4)  Skill level 4-sergeant first class (SFC). 
   
   (5)  Skill level 5-MSG and sergeant major (SGM).

24.  Army Regulation 635-5 (Separation Documents), in effect at the time, prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  The regulation states any MOS held at least 12 months shown in years and months will be entered in item 11.  It also states that for an active duty Soldier deployed with his or her unit during their continuous period of active service, the statement "SERVICE IN (NAME OF COUNTRY DEPLOYED) FROM (inclusive dates for example, YYYYMMDD - YYYYMMDD)" will be entered in item 18.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his RE-4 code is unjust and causes negative results when he applies for jobs.  RE-2 codes applied to Soldiers who separated prior to 1995.  Since he was discharged subsequent to that date he is ineligible to be issued an RE-2 code.  

2.  The evidence of record shows the applicant was separated with a separation code of "JJD" and he was assigned an RE code of 4 in accordance with the governing regulation.  

3.  In February 2009, the ADRB upgraded his character of service to general under honorable conditions.  However, his narrative reason for discharge and RE code were not changed.  

4.  His RE code is based on his reason for discharge and cannot be changed unless the applicant's narrative reason for separation is changed.  His narrative reason for separation was based on court-martial, other and there is no basis upon which this reason should be changed.  

5.  The evidence of record shows he was promoted to SGT/E-5 on 1 September 1999 (during his last period of service) and to SSG/E-6 on 1 July 2000.  

6.  It appears he wants clemency as it pertains to the portion of his sentence that reduced him to pay grade E-2.  He was convicted by a special court-martial in November 2006 and was sentenced to reduction to the grade of PV2/E-2, confinement for four months, and to be discharged from the service with a BCD.  The sentencing authority recommended the convening authority consider suspending the BCD and give the applicant a probationary term to determine whether he was salvageable.  His service record is void of evidence which indicates clemency was recommended in regard to his reduction to PV2/E-2.

7.  On 2 February 2009, the ADRB determined that the applicant's characterization of service was too harsh and clemency was warranted based on the overall length and quality of his service.  As a result, the ADRB upgraded the applicant's characterization of service to general under honorable conditions.  However, the ADRB determined that a change in his reason for discharge was not authorized under Federal statute.  

8.  Although he was granted clemency regarding his BCD, clemency is not warranted for his reduction to rank/pay grade PV2/E-2.  Therefore, there is no basis for reinstating his rank to SGT/E-5 or SSG/E-6.  However, his DD Form 214 erroneously shows his rank/pay grade as PV1/E-1 and it should be corrected to show it as PV1/E-2.

9.  His contention that he was stripped of his MOS at his sentencing is acknowledged.  The evidence of record indicates he was reclassified to 11B because he failed to uphold the law as required of Military Police.  However, he served in MOS 31B from 25 February 1999 through 31 October 2009, a period of 8 years and 8 months.  Therefore, it would be appropriate to amend item 11 of his DD Form 214 for the period ending 12 March 2008 to show he served in MOS 31B for 8 years and 8 months.

10.  The evidence of record shows his rank/pay grade was reduced from 
SSG/E-6 to PV2/E-2 as a result of his court-martial.  Therefore, his skill level was properly changed from 31B3P to 31B1P.  Since his rank of SGT/E-5 was not restored, there is no basis for amending his DD Form 214 to show his MOS as 31B2P.  

11.  His DD Form 214 for the period ending 12 March 2008 shows he served in Kosovo from 28 May to 9 December 2000 and in Iraq from 12 January 2004 to 5 January 2005 and was credited with 1 year, 6 months, and 6 days of foreign service.  

12.  DFAS confirmed he received HF/IDP and CZTE for the period 21 December 2001 to 10 July 2002 for Uzbekistan (a period of 6 months and 20 days).  His NCOER which covers this period shows he was deployed to Afghanistan.  

13.  Therefore, it would be appropriate to amend item 12f of his DD Form 214 to show an additional 6 months and 20 days of foreign service and to amend item 18 to reflect his service in Uzbekistan and Afghanistan from 21 December 2001 to 10 July 2002.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x___  ____x___  ___x____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that the DD Form 214 for the period ending 12 March 2008 of the individual concerned be corrected by:

	a.  deleting the entry "0 YRS 0 MOS" from item 11 and replacing it with the entry "8 YRS 8 MOS"; 

	b.  deleting the entry "0001 06 06" from item 12f and replacing it with the entry "0002 00 26"; and

	c.  deleting the current entries in items 4a and 4b and replacing it with the entry “PV2” and “E02,” respectively.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to:

	a.  changing his RE code from RE-4 to RE-2;

	b.  granting clemency on the portion of the sentence that reduced him to rank/pay grade “PV1/E-1”;

	c.  reinstating his final rank/pay grade to SGT/E-5 (or possibly SSG/E-6); or
	
   d.  reinstating his MOS of 31B2P and the service years in that MOS.  



      ____________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)                                         AR20130016425



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ABCMR Record of Proceedings (cont)                                         AR20130016425



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