IN THE CASE OF:	  

		BOARD DATE:	    21 May 2015

		DOCKET NUMBER:  AR20140017306 


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, in effect, and upgrade of his bad conduct discharge and correction of his Reentry (RE) Code.

2.  The applicant states:

	a.  He genuinely regrets that he felt he was left with no alternative than to go absent without leave (AWOL) because his desire to serve our country remains the same, even today as a discharged Soldier.  He wishes he was still able to serve our country.  As a 19-year-old brand-new Soldier, he was left with the decision to either care for his mother who was suffering from cancer or maintain his commitments to our country.  Unfortunately, he made the wrong youthful decision and today as a 27-year-old man he realizes that the correct option would have been to utilize his chain of command.  As soon as his mother's cancer went into remission he returned to Fort Benning, in full uniform, to face the certain disciplinary consequences as a Soldier and also show his intention to continue serving our nation (as shown in appendix B in his U.S. Army Court of Appeals case).  He received a bad conduct discharge and served 4 months and 5 days confinement.  He appealed and requested to be reintegrated into the Army but his requests were denied.  He respects the Army's decision to court-martial him.  Today, as a grown man, he understands the implications of an unauthorized absence.  His claim to this Board is not that his discharge and RE Code are incorrect; but rather that they are unjust and hopefully the following will explain his cause.   


	b.  Since his discharge from the Army he has been a model citizen; other than routine traffic violations, he has had no problems with the law.  He has worked for Dish Network as a sales agent and then went to school at Branford Institute in Paterson, NJ, and became a Certified Nursing Assistant.  He secured employment at a nursing home and cared for the geriatric population.  He then began nursing school at Hackensack University Medical Center Mountainside School of Nursing and also started working at Morristown Medical Center as a patient care technician, first in the surgical access unit and has been employed in the intensive care unit for the last year.  In March 2014, he was selected as employee of the month in the intensive care unit (ICU).  He is also the Falls Prevention Champion and the Restraints Champion as well as an active member of the ICU Shared Governance Committee and the Quality Improvement Committee.  His passion for serving others and taking care of people has been with him since he was a child hence why enlisted as a medic in the Army.

	c.  However through the years of growing up, going to school, taking care of patients, performing chest compressions on dying patients, watching patients die and consoling grieving family members, he has not only been humbled but he has grown up.  The decisions he makes today are well thought out adult decisions, whereas when he was 19 he made the unfortunate and impulsive decision to go AWOL when his mother was diagnosed with cancer.  As he mentioned previously, his discharge and RE Code are administratively correct, but in his opinion are unjust because they do not reflect who he is today and have imposed a great deal of hardship and his ability to practice his profession as a licensed registered nurse.  Today, he is a mature man, a licensed registered nurse, and a graduate from nursing school with a passion to care for the critically ill and dying patients in the ICU, but he is struggling and unable to do so because of the implications of his discharge and his RE Code.  He fully believes that he is not only an asset to be a productive member of society, but, it would also be a blessing to be able to take his skills as a licensed registered nurse and reenter the military as a nurse. 

	d.  He wants to make it clear to the Board that he is not looking for a free pass.  He served his sentence and since then he has accomplished a great deal and learned from his mistake and he is proud of what he has accomplished. Unfortunately, there's nothing he can do from here due to his discharge and his RE Code.  That is why he believes they are unjust.  He is not the same person he was at the age of 19.  His experiences in healthcare and interaction with people at the worst times of their lives have shown him that he has the ability to change people's lives.  He simply wants to do just that in the Army, in the civilian world and somehow make up for the decision he made when he was 19 years old.  If his discharge and RE Code are upgraded, he will have a better chance at working as a licensed registered nurse and have a better ability to possibly receive a waiver for his RE Code if the Board is unable to upgrade that also. However, he would hope that the Board would be able to upgrade his RE Code as well. 

	e.  He requests that the Board take into account everything since the day he was discharged and how far he has come and truly understand that he is not the same person who went AWOL 8 years ago when his mother had cancer.  He should have utilized his chain of command and he regrets that he didn't.  If clemency is the only way to upgrade his discharge and RE Code, then he requests the Board consider that.  He will also further waive any fees that would need to be paid to him as a result of clemency (since he was confined).  He is not looking for anything other than a second chance. 

3.  The applicant provides:

* General Court-Martial Order Number 45, dated 15 October 2008
* General Court-Martial Order Number 121, dated 23 July 2009
* Petition for Grant of Review in the U.S. Court of Appeal of the Armed Forces 
* Decision by the U.S. Court of Criminal Appeals
* Rèsumè
* Multiple character reference letters and/or letters of support
* Self-authored education plan
* School of Nursing Diploma
* Copy of license
* Certificates 

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's records show he enlisted in the Regular Army on 26 January 2006.  It appears he was trained in and held military occupational specialty 68W (Health Care Specialist). 

3.  He was assigned to Headquarters and Headquarters Company, 1st Battalion, 15th Infantry Regiment, Fort Benning, GA. 

4.  On 6 September 2006, the applicant departed his unit in an AWOL status and on 6 October 2006, he was dropped from the Army rolls as a deserter.  He surrendered to military authorities on 24 October 2006 at Fort Sill, OK. 

5.  On 25 October 2006, he again departed his unit in an AWOL status.  He remained absent through 22 May 2008. 

6.  On 25 August 2008, consistent with his pleas, the applicant was convicted by a general court-martial of two specifications of AWOL from 6 September to 24 October 2006 and 25 October 2006 to 22 May 2008.  The court sentenced him to a reduction to the lowest enlisted grade, confinement for 6 months, and a bad conduct discharge. 

7.  On 15 October 2008, the convening authority approved a lesser sentence of reduction to E-1, confinement for 5 months, and a bad conduct discharge, and, except for the bad conduct discharge, ordered the sentence executed.  The record of trial was forwarded to The Judge Advocate General of the Army for appellate review.

8.  On 19 February 2009, the U.S. Army Court of Criminal Appeals affirmed the approved findings of guilty and the sentence.

9.  On 12 April 2009, the applicant filed a petition with the U.S. Court of Appeals of the Armed Forces for a grant of review of his case.  He indicated that he regretted his actions, his mother was gravely ill, his family had to work to support her treatment which left no one to care for her, and that he had language skills the Army could use. 

10.  On 23 June 2009, the U.S. Court of Appeals for the Armed Forces denied his petition for a grant of review. 

11.  Headquarters, U.S. Army Armor Center, Fort Knox, KY, General Court-Martial Order Number 121, dated 23 July 2009, shows the convening authority ordered the applicant's bad conduct discharge duly executed after completion of all required post-trial and appellate reviews.

12.  He was discharged on 16 October 2009.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged as a result of a court-martial in accordance with Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations) with a bad conduct discharge.  His DD Form 214 shows he completed 1 year, 8 months, and 4 days of net active service this period.  He also had time lost from 
6 September to 24 October 2006, 25 October 2006 to 22 May 2008, and 25 August 2008 to 24 December 2008.  His DD Form 214 also shows in:

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

13.  He provides: 

	a.  Rèsumè, highlighting his education, certifications, accomplishments, employment, and qualifications. 

	b.  Multiple character reference letters and/or letters of support from various professionals who describe him as a goal-oriented, kind, and considerate person.  He is also described as an outstanding student who enjoys critical care.  He has strong work ethics and impeccable time management and organizational skills. 

	c.  Self-authored education plan showing his short-term goal is to attend Villanova University and his long-term plan is to attend Duke University. 

	d.  School of Nursing Diploma, dated 11 June 2014. 

	e.  Registered Nurse License. 

	f.  Certificate showing his continued education. 

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 sets forth the basic authority for the separation of enlisted personnel.  

	a.  Chapter 3 prescribes the policies and procedures for separating members with a dishonorable or a bad conduct discharge.  It stipulates that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or a special court-martial and that the appellate review must be completed and affirmed before the sentence is ordered duly executed.

	b.  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.

	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 honorable discharge.

16.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the U.S. Army Reserve.  It states, in pertinent part, 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.  Table 3-1 included a list of the Regular Army RE codes.

* 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
* 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
* RE-4 applies to Soldiers separated from their last period of service with a nonwaivable disqualification

17.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that the SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  The SPD code of "JJD" is the correct code for Soldiers discharged under chapter 3 of Army Regulation 635-200 by reason of court-martial.  

18.  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 a corresponding RE code.  The table in effect at the time of his discharge shows the SPD code of "JJD" has a corresponding RE code of "4."

DISCUSSION AND CONCLUSIONS:

1.  The applicant's trial by a general court-martial was warranted by the gravity of the offenses charged.  His conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.

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

3.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  By law, this Board 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.

4.  His post-service academic qualifications and achievements are noted.  However, his service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, clemency in the form of an honorable or general discharge is not warranted in this case.  

5.  The applicant's RE code was assigned based on the fact that he was discharged under the provisions of chapter 3 of Army Regulation 635-200 due to his court-martial conviction.  Absent the extensive AWOL, there was no fundamental reason to prefer charges and convene a court-martial.  The underlying reason for his discharge was his AWOL that led to a court-martial conviction.  The only valid narrative reason for separation permitted under that paragraph is "Court-Martial" and the appropriate RE code associated with this discharge is an RE-4 which is correctly shown on his DD Form 214.

6.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  The applicant chose to go AWOL.  There would have been many other legitimate avenues to address his mother's illness (leave, compassionate reassignment, etc.) had the applicant elected to utilize those avenues.  The applicant has not submitted any substantiating evidence to show his RE code is in error or inequitable.  
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)                                         AR20140017306





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ABCMR Record of Proceedings (cont)                                         AR20140017306



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