IN THE CASE OF:	

		BOARD DATE:	  21 July 2015  

		DOCKET NUMBER:  AR20140018432 


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 bad conduct discharge be upgraded to an honorable discharge or a discharge under other than honorable conditions.  He requests his reentry eligibility (RE) code be changed and his rank upgraded 
to E-3.

2.  The applicant states he feels the conditions on how he was discharged were unjust.  He had entered the Army as a Reservist at the age of 17 under the split option program.  After graduating from high school in 1998, he went on active duty in military occupational specialty 75H (Personnel Specialist) at Fort Hood, TX.  

	a.  In 2000, he found out through the Red Cross that his father was diagnosed with terminal stomach cancer with a low life expectancy.  His father was unable to work and wasn't receiving disability for awhile.  His parents were on the verge of being evicted and his previous job insurance didn't cover all of his prescriptions.

	b.  The applicant's commander and noncommissioned officers (NCO) were aware of his situation and he went into a lot of debt trying to help his parents.  His unit did not assist or help him with referrals to a financial specialist at Fort Hood, who might have helped him in getting his finances back on track.

	c.  His military pay was "frozen" and he was limited to getting funds by getting permission to go to finance and receive a partial payment at their discretion.  During this period he also had a 1-year old son who was being affected by his situation.  

	d.  To cover his expenses he started writing post-dated checks to the Army and Air Force Exchange Service (AAFES) and depositing the funds whenever they allowed him access to his pay through receiving partial payments through finance.  After awhile, various checks came back bounced and he didn't have the funds to pay AAFES.  

	e.  In July 2001, he was notified by the Red Cross his father was back in the hospital and the doctor was requesting all of the immediate family to come home because he only had a 2-week life expectancy.  His unit commander approved him to go on emergency leave.  Hours before he was due to catch a flight home his NCO called him and told him he was needed in the office and he could no longer go home.   So he went AWOL so he could be with his father during his last days.  

	f.  His father lived for another 6 months, but he was scared to return to Fort Hood and his family needed him.  He enrolled in college full time and got a job earning $40,000+ a year to help his parents.  He also paid AAFES the money he owed in full.  He was apprehended after being stopped by local police in SC.  

	g.  His former commander and acting first sergeant were at his sentencing, but they failed to mention they didn't help him or assist him in referring him to see a finance counselor, which probably could've helped him.  They also failed to mention his pay being frozen or their reason for approving his leave then telling him he couldn't go.

	h.  His supervisor, a chief warrant officer, stated that he was 98 percent proficient in his work/duties as a personnel specialist.  He feels the judge didn't take this into consideration or the fact that he took responsibility and repaid his debts or his reason for leaving.  The prosecutor "over exaggerated" along with his unit command and former active first sergeant.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 29 February 2008.

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.  He previously served in the Regular Army for 4 months and 9 days.  He was discharged by reason of Secretarial Authority and his service was characterized as honorable.

3.  On 26 January 2000, he enlisted in the Regular Army in pay grade E-2 for 
4 years.

4.  On 11 July 2001, he went absent without leave (AWOL) and he was dropped from the rolls on 10 August 2001.  On 13 January 2003, he was apprehended by civil authorities and returned to military control the same day.

5.  On 24 March 2003, he was tried before a general court-martial at Fort Hood, TX.  He pled guilty and was found guilty of:

	a.  Between on or about 19 September  and 3 October 2000 with intent to defraud and for the procurement of lawful currency or things of value wrongfully and unlawfully making and uttering to the AAFES 26 checks, then knowing he did not or would not have sufficient funds in or credit with such credit unions for the payment of the checks in full upon each checks presentment.

	b.  Being AWOL from on or about 11 July 2001 and with intent to remain away permanently from his unit and he remained so absent in desertion until he was apprehended on or about 13 January 2003.

	c.  His sentence consisted of reduction to the grade of private/pay grade E-1, forfeiture of all pay and allowances, confinement for 15 months, and to be discharged with a bad conduct discharge.

6.  On 1 August 2003, the convening authority approved only so much of the sentence that provided for reduction to the grade of private, forfeiture of all pay and allowances, confinement for 12 months, and a bad conduct discharge.   The applicant was to be credited with 2 days of confinement against the sentence to confinement.

7.  On 24 January 2006, the U.S. Army Court of Criminal Appeals (USACCA) affirmed the findings of guilty.  The sentence was set aside.  A rehearing on the sentence could be ordered by the same or a different convening authority.

8.  On 9 June 2006, a rehearing on his sentence was held before a general court-martial at Fort Hood, TX.  The sentence adjudged was reduction to the grade of private, forfeiture of all pay and allowance, confinement for 14 months, and to be discharged with a bad conduct discharge.  

9.  On 15 December 2006, the convening authority approved only so much of the sentence that provided for reduction to the grade of private, forfeiture of all pay and allowances, confinement for 12 months, and to be discharged with a bad conduct discharge.

10.  On 22 May 2007, the USACCA affirmed the findings of guilty and the sentence as approved by the convening authority.  On 27 September 2007, his bad conduct discharge was ordered to be executed.

11.  On 29 February 2008, the applicant was discharged with a bad conduct discharge as the result of a court-martial.  He completed 5 years, 10 months, and 21 days of net active service.  He had 799 days of time lost.  His DD Form 214 shows he was discharged as a private.  He was assigned a separation program designator (SPD) code of "JJC" and assigned an RE code of "4."

12.  Army regulations state that prior to discharge or release from active duty, individuals will be assigned an RE code 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 and the Army Reserve.  Table 3-1 (U.S. Army reentry eligibility codes) states that RE-4 applies to persons separated from their last period of service with a non-waivable disqualification.  

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

	a.  Chapter 3 establishes policy and procedures for separating members with a dishonorable or bad conduct discharge and provides that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  That the appellate review must be completed and the affirmed sentence ordered duly executed.

	b.  A general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

	c.  An under other than honorable conditions discharge is an administrative separation from the Service under conditions other than honorable.  

14.  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's to be used for these stated reasons.  The regulation shows the SPD code "JJC" as shown on the applicant's DD Form 214 specifies the narrative reason for discharge as "court-martial, desertion."

15.  The SPD/RE Code Cross-Reference Table indicates the appropriate RE code for SPD code "JJC" is "4."

16.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions concerning his father's health, his financial status, and the reason he went AWOL were carefully considered.  However, he did not provide any substantive evidence to support his contentions.  In addition, the proper place to consider these contentions was during his court-martial, sentencing hearing, and his appellant proceedings.  

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.  Absent any mitigating factors, the type of discharge directed and the reasons there for were appropriate.  As a result, clemency is not warranted in this case.

3.  He was sentenced to a reduction to private as a result of his court-martial.  There is no evidence his sentence was harsh or unjust.  His RE code is correct based on the reason for his discharge.
4.  The fact that he was apprehended by civilian authorities after 799 days of being AWOL raises doubt as to his intent to return to military jurisdiction of his own volition.  His service is considered unsatisfactory and there is no basis upon which to upgrade his bad conduct discharge.  

5.  The evidence shows that the applicant's trial by court-martial was warranted by the gravity of the offenses for which he was charged.  His conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.

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)                                         AR20140018432



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ABCMR Record of Proceedings (cont)                                         AR20140018432



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