MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           6 June 2002
	DOCKET NUMBER:   AR2002069892

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Carl W. S. Chun		Director	
	Mr. William Blakely		Analyst	

  The following members, a quorum, were present:

	Mr. Stanley Kelley		Chairperson	
	Mr. John T. Meixell		Member	
	Mr. Thomas E. O’Shaughnessy, Jr.		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                            records
	Exhibit B - Military Personnel Records (including
	                 advisory opinion, if any)

APPLICANT REQUESTS:  In effect, that his reentry (RE) code of RE-4 be changed to a more favorable RE code and his character of service be upgraded. 

APPLICANT STATES:  In effect, he requests a correction and improvement in his RE-4 code and the character of his service.  He explains that he served on active duty from 26 June 1981 through 16 December 1983, and was court-martialed in 1983.  Subsequent to his court-martial he requested retraining, but was denied.  He was never given a reason for this denial, and to this date is unsure why he was not given an opportunity to demonstrate his good conduct and ability to perform his job.  In addition, he questions the validity of his separation document (DD Form 214) since he never signed the document.  He indicates that subsequent to his separation, he chose to work in the airline industry and has worked for a reputable airline for over 13 years, where his work history reflects an excellent level of performance and good conduct.  Considering these facts, he now requests that his RE-4 code be changed in order to allow him to enlist in the Reserves.  He concludes by commenting that his level of maturity has increased greatly with age, and he is now ashamed of the outcome of his first period of service and it is his sincere desire to have the opportunity to serve again, even if on a part-time basis.  

EVIDENCE OF RECORD:  The applicant's military records show:

He continuously served on active duty for 2 years, 3 months, and 15  days, from 26 June 1981 until 16 December 1983, at which time he was separated with a bad conduct discharge (BCD) as a result of a sentence imposed on him as a result of a conviction by a special court-martial.  

The applicant’s records confirm that he was trained in, awarded, and served in military occupational specialty (MOS) 76C (Equipment Records and Parts Specialist).  The highest rank he attained while serving on active duty was private first class/E-3, and his records document no other acts of valor, significant achievement, or service warranting special recognition.

On 12 April 1983, the applicant was convicted by a special court-martial of failure to repair, two specifications of disobeying a lawful command, and two specifications of disobeying a lawful order.  The resultant sentence included a forfeiture of $382.00 per month for 4 months, confinement at hard labor for 
4 months, and a BCD.  The findings and the sentence were approved and affirmed, as confirmed in Special Court Martial Orders (SPCMO) Number 771, dated 5 December 1982, issued by the United States Army Correctional Activity, Fort Riley, Kansas.  On 16 December 1983, he was discharged with a BCD accordingly, after completing a total of 2 years, 3 months, and 15 days of creditable active military service.  

The separation document (DD Form 214) issued to the applicant on the date of his separation confirms that the authority for his discharge was Chapter 3, section IV, Army Regulation 635-200, and the reason for his separation was the result of court-martial.  This document also verifies that based on the authority and reason for his discharge, the applicant was assigned a Separation Program Designator (SPD) code of JJD and a RE code of RE-4.  

Army Regulation 635-5-1 (SPD Codes) provides the specific authorities (regulatory or directive), reasons for separating soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  Based on the guidance provided in this regulation, the SPD code of JJD is the appropriate code to assign soldiers separated under the provisions of Army Regulation 635-200, Chapter 3, section IV, by reason of a result of court-martial.  Additionally, Table 2-3 (SPD/RE Code Cross Reference Table), Army Regulation 635-5 (Separation Documents), establishes RE-4 as the proper reentry code to assign to soldiers separated for this reason.

Title 10 of the United States Code, section 1552 as amended does not permit any redress by the Army Board of Correction of Military Records (ABCMR) of the finality of a court-martial conviction and empowers the ABCMR to only change a discharge if clemency is determined to be appropriate.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and it is concluded:

1.  The Board notes the applicant’s contentions that the quality of his service prior to his court-martial conviction, the fact that he was not afforded the opportunity to be retrained, and his post service conduct and employment warrants a change in the character of his service and his assigned RE-4 code. However, it finds these factors are not sufficiently mitigating to warrant the requested relief.  

2.  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 punishment imposed.  

3.  The evidence of record confirms that the applicant’s conviction and discharge were effected in accordance with applicable law and regulations in effect at the time and that his trial by court-martial was warranted by the gravity of the offenses with which he was charged.  Further, it confirms that as a result of being discharged by reason of court-martial, he was appropriately assigned an 
RE-4 code based on regulatory guidance.  

4.  Notwithstanding the applicant’s contentions and desires, the Board finds that the type of discharge appropriately characterizes the misconduct for which he was convicted and accurately reflects his overall record of service.  In addition, it concludes that the assigned RE-4 code was and is still appropriate based on the authority and reason for his discharge.  Therefore, the Board finds there is an insufficient basis to grant clemency in this case. 

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

_SK___  ___JTM__  __TEO____  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2002069892	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/06/06	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	100.0300	
2.		
3.		
4.		
5.		
6.