BOARD DATE:	  16 October 2014

		DOCKET NUMBER:  AR20130022405 


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 dishonorable discharge (DD) and his reentry eligibility (RE) code.

2.  The applicant states that his DD and RE code should be upgraded so he can have a "second chance" at the Army.  He states his discharge was inequitable because it was based on one isolated incident in 19 months of service with no other adverse action.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty) dated 9 December 2013
* Final Risk Assessment dated 2 April 2013
* Treatment Summary dated 29 April 2013

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 8 November 2007.  He completed training as a unit supply specialist.

2.  The facts and circumstances pertaining to the applicant's discharge are not available.  Information contained herein was provided by the applicant.

3.  The applicant was dishonorably discharged on 14 December 2012 under the provisions of Army Regulation 635-200, chapter 3, as a result of a court-martial conviction.  His DD Form 214 shows he completed 2 years and 14 days of net active service this period.  He received an RE code 4 and a JJD "court-martial" separation program designator (SPD).

4.  The applicant provides a Final Risk Assessment dated 2 April 2013 from the United States (U.S.) Disciplinary Barracks, Fort Leavenworth, Kansas, which shows he was confined as a result of a court-martial conviction for the following offenses:

* Absence without leave
* Distribution of 2.5 grams of methamphetamines
* Attempt to manufacture methamphetamines with the intent to distribute
* Child endangerment
* Sexual contact with a child under 12 years of age

5.  He was sentenced to:

* DD
* Confinement for 6 years and 10 months
* Reduction to pay grade E-1
* Forfeiture of all pay and allowances

6.  As of the date of his application to this Board (9 December 2013), the applicant was a member at the U.S. Disciplinary Barracks, Fort Leavenworth, Kansas.  He has a mandatory supervised release date of 21 April 2016.

7.  Army Regulation 635-200 (Personnel Separations- Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 3-11 provides that a Soldier will be given a DD pursuant only to an approved sentence of a general court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

   b.  Paragraph 3-7a provides that an honorable discharge (HD) 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 HD.

8.  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

9.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) 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 covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army, U.S. Army Reserve, and Army National Guard.  Chapter 3 prescribes basic eligibility for prior-service applicants for enlistment and includes a list of Armed Forces RE codes.  An RE code 4 applies to persons who have a non-waivable disqualification.

10.  Army Regulation 635-5-1 (Separation Program Designator (SPD Codes)) prescribes the specific authorities (regulatory, statutory, or other directives) and reasons for the separation of members from active military service and the SPD code to be used for these stated reasons.

11.  The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Regular Army Soldiers and Reserve Component Soldiers separated for cause.  The SPD code JJD corresponds to RE code 4.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence shows that the applicant was convicted by a general court-martial and he was discharged as a result of his court-martial conviction.  He has not provided any evidence to show the character of service he received was in error or unjust.  Therefore, there is no basis for granting the applicant's request for an upgrade of his discharge.

2.  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 he received and the reason therefore appear to be appropriate.  As a result, clemency is not warranted in this case.

3.  A review of the available evidence fails to show error or injustice in his assigned RE code.  He was discharged as a result of a court-martial conviction.  He was assigned an RE code 4 and an SPD code of JJD based on his reason for discharge.  His desire to get a "second chance" at the Army is not a basis for changing his RE code.

4.  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)                                         AR20130022405



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ABCMR Record of Proceedings (cont)                                         AR20130022405



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