IN THE CASE OF:    

		BOARD DATE:  27 October 2015	  

		DOCKET NUMBER:  AR20150003782 


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 bad conduct discharge (BCD) to honorable
* revision of his reentry (RE) code from RE-4 (nonwaivable disqualification for reentry) to RE-1 (qualified for reentry)
* amending the narrative reason for separation from "as a result of court-martial, other" to "convenience of the Government"

2.  The applicant states, in effect:

* he was about 26 years old and a graduate of both high school and an automotive/diesel mechanic trade school
* being adventurous by nature, he wanted to live outside of Ohio (OH); to see the world and its cultures, and to learn other avenues of communication
* he enlisted in Akron, OH and officially entered the Army in Cleveland, OH
* he completed basic combat training at Fort Jackson, SC and went to Fort Gordon, GA for advanced individual training (AIT) in military occupational specialty 31C (Single Channel Radio Operator/International Morse Code)
* his first assignment after AIT was to Neu Ulm, Germany
* he enjoyed being in the military and fully intended to make it a career
* while off-duty in Germany, he did, in fact, smoke hashish at a local civilian night club; he also gave a joint to a fellow Soldier
* as a result of these actions, he was court-martialed, sentenced to 6 months incarceration (of which 2 1/2 weeks were served in Germany and the remainder at Fort Knox, KY), and he was then separated from the military

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 15 March 1991
* four letters of support
* Orders Number 059-152, dated 28 February 1991, issued by Headquarters, U.S. Army Armor Center and Fort Knox showing the applicant was directed to report on 15 March 1991 to the U.S. Army Transition Point at Fort Knox
* Special Court-Martial Order (SPCMO) Number 23, dated 4 February 1991, issued by Headquarters, U.S. Army Armor Center and Fort Knox
* General Court-Martial Order (GCMO) Number 13, dated 1 June 1990, issued by Headquarters, 1st Infantry Division (Forward) 
* memorandum, dated 31 October 1990, prepared by the commander, Personnel Control Facility, Law Enforcement Command, U.S. Armor Center and Fort Knox, subject:  Staff Action - Decision Paper on Involuntary Excess Leave with enclosures

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 12 November 1987.

3.  His records contain the following documents:

	a.  DA Form 4126-R (Bar to Reenlistment), dated 25 August 1989, showing a 

bar to reenlistment was approved based upon the following:

* nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) administered on 12 July 1989 for one specification of shoplifting; punishment was reduction in rank to private/E-1 (suspended for 3 months), forfeiture of pay, extra duty, and restriction (suspended for 3 months)
* letter of indebtedness, dated 3 May 1989, from the Consumer Adjustment Corporation

	b.  DA Form 4430-R (Department of the Army Report of Results of Trial), addressed to the Commander, 1st Infantry Division (Forward), signed by Captain GNJ, Judge Advocate General's Corps, which states, in summary:

* the applicant was tried by an SPCM empowered to adjudge a BCD on 3 May 1990
* he pled guilty to and was convicted of two specification of Article 112a (respectively, wrongful distribution on 26 July 1989 and wrongful use of marijuana between 7 October 1989 and 7 November 1989)
* he was sentenced to reduction to the lowest grade, forfeiture of pay for 6 months, confinement for 6 months, and a BCD

	c.  GCMO Number 13, dated 1 June 1990, issued by Headquarters, 1st Infantry Division (Forward), showing the applicant was convicted by a GCM [sic, forum was actually a SPCM empowered to adjudge a BCD, as evidenced by the above-cited DA Form 4430-R].  The order also shows the GCM convening authority approved the sentence and, except for the BCD, ordered the sentence to be executed.  (This order was apparently  superseded by SPCMO Number 5, dated
1 June 1990, issued by Headquarters, 1st Infantry Division (Forward).  It is not available in the applicant's service record). 

	d.  SPCMO Number 23, dated 4 February 1991, issued by Headquarters, U.S. Army Armor Center and Fort Knox,  shows the sentence, as promulgated by SPCMO Number 5, dated 1 June 1990, issued by Headquarters, 1st Infantry Division (Forward)), was affirmed.  The order directed the execution of the BCD.  The applicant was discharged accordingly.

4.  His DD Form 214 shows he completed 2 years, 11 months, and 4 days of net active  service his period.  

	a.  He was awarded or authorized the Army Service Ribbon and an Expert Marksmanship Qualification Badge with Rifle Bar (M-16).

	b.  The separation authority is Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 3, section IV (Character of Service/Description of Separation - Dishonorable and BCD).

	c.  The character of service is shown as BCD, the separation code (or separation program designator (SPD)) is JJD, the RE code is listed as RE-4, and the narrative reason for separation is stated as being the result of a court-martial, other.

5.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

6.  The applicant provides four letters of support, wherein the respective authors, all from the Interval Brotherhood Home (IBH) Addiction Recovery Center, Akron, OH, essentially state:

* the applicant was admitted to the IBH Addiction Recovery Center on 21 August 2014 and was successfully discharged from Phase I of their program on 30 October 2014
* he is currently participating in Phase II, which addresses individual issues related to addiction
* the applicant is quite intelligent and displayed insight; he was a model resident who came to be highly respected by the staff as well as his peers
* he consistently exhibited courage, dignity, responsibility, humility, and compassion
* he has participated in the IBH's Recovery, Education, Accountability, Community, Hope (REACH) Project, which is a non-clinical aftercare program and includes volunteer work
* he has evidenced a strong desire to recover
* he has demonstrated great change in his life on his journey to recovery

7.  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.

8.  Army Regulation 635-200, in effect at the time, prescribed policy and procedures for enlisted separations.

	a.  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.
   
   b.  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.

	c.  A BCD is issued 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.

9.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army, U.S. Army Reserve, and Army National Guard.  Table 3-1 includes 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 

10.  Army Regulation 635-5-1 (Personnel Separations - SPD), in effect at the time, defines the separation codes used on the DD Form 214.  The regulation identifies the SPD and associates the code with the authority and narrative reason.  For "JJD" the authority is shown as Army Regulation 635-200, section IV.  The narrative reason is stated  "as a result of court-martial, other."

11.  The SPD/RE Code Cross Reference Table, in effect at the time, provided instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers.  This cross reference table showed the SPD code and a corresponding RE code.  The SPD code of "JJD" has corresponding RE code of "4."

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests his discharge be upgraded to honorable.  With respect to the characterization of service:

	a.  The applicant’s records show he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  He pled guilty to and was found guilty of the two specifications charged.  He was given a bad conduct discharge pursuant to a special court-martial empowered to adjudge such a discharge.  This type of court-martial was warranted given the gravity of the offenses charged.  His conviction and discharge were effected in accordance with applicable laws and regulations and his discharge appropriately characterizes the misconduct for which he was convicted.  The appellate review was completed and the affirmed sentence ordered duly executed.

	b.  All requirements of law and regulation were met and his rights were fully protected.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  Although the applicant provides evidence he is successfully participating in an addiction recovery program, the evidence he provides does not appear to be sufficient to warrant the Board granting clemency.  Given the charges for which the applicant was convicted, the punishment seems appropriate.

2.  As to the revision of his RE code and the amendment of the narrative reason for separation:

	a.  An RE code is assigned based on the authority for discharge and the associated SPD code.  In this case, the applicant received a BCD administered by a court-martial empowered to adjudge this as a punishment.  

	b.  According to the regulation, the SPD code of JJD is the correct code for cases where Soldiers are being discharged with a BCD.  Additionally, the regulation provides the narrative reason for separation, which in this case is "as a result of court-martial, other."  

	c.  The SPD/RE Code Cross Reference Table that was in effect at the time shows that an RE-4 reentry code is appropriate when the SPD code is JJD.


	d.  The applicant offers no evidence which would show the RE code and narrative reason currently shown on his DD Form 214 were incorrect or the result of an injustice.

	e.  Based upon the foregoing, it appears the evidence supports that the correct SPD, RE code, and narrative reason were shown on the applicant's DD Form 214, and no change is warranted.  

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)                                         AR20150003782





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ABCMR Record of Proceedings (cont)                                         AR20150003782



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