RECORD OF PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:  27 January 2004
	DOCKET NUMBER:  AR2003088358

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

	Mr. Carl W. S. Chun		Director	
	Ms. Joyce A. Wright		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Ms. Yolanda Maldonado		Member	
	Mr. Lester Echols		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests that his Reentry (RE) Code of RE "4" and Separation Program Designator (SPD) Code of "JJD" be changed to allow him to reenlist.

2.  The applicant states that his RE and SPD Codes prevent him from reenlisting and must be changed.

3.  The applicant provides no documentation.

CONSIDERATION OF EVIDENCE: 

1.  The applicant's military records show he enlisted on 17 June 1980, as a food service specialist.  He continued to serve through a series of continuous reenlistments.

2.  He was convicted by a special court-martial on 19 July 1993 of larceny, wrongful appropriation of funds, and false swearing.  His sentence consisted of a forfeiture of pay, reduction to the pay grade of E-1, confinement at hard labor for 3 months, and a bad conduct discharge. 

3.  On 5 December 1994, the Court of Military Review affirmed the findings and sentence of the special court-martial conviction as approved by the convening authority.

4.  On 28 December 1994, the applicant was discharged from the Army pursuant to the sentence of a special court-martial and was issued a Bad Conduct Discharge Certificate.  He had served 14 years, 4 months, and 1 day of creditable service and 71 days of lost time due to confinement.  He was issued an RE Code of RE "4" and an SPD Code of "JJD."

5.  The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge on 5 September 2002.  The ADRB upgraded his discharge to general on 20 December 2002, with no change in his RE or SPD Code. 

6.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-11 of that regulation provides that a soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence duly executed.

7.  Pertinent Army regulations provide that prior to discharge or release from active duty, individuals will be assigned reentry 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 (RA) and the US Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment. That chapter includes a list of Armed Forces reentry codes, including RA RE codes.

8.  RE–4 applies to persons not qualified for continued service by virtue of being separated from the service with non-waivable disqualification such as misconduct, court-martial.

9.  Army Regulation 635-5-1 prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPD to be used for these stated reasons.  The regulation shows that the SPD of “JJD” as shown on the applicant’s DD Form 214 is appropriate for involuntary discharge when the narrative reason for discharge is “Court Martial.”  

10.  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.  The U.S. Court of Appeals, observing that applicants to the Army Discharge Review Board (ADRB) are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens that filing period, has determined that the 3 year limit on filing to the Army Board for Correction of Military Records (ABCMR) should commence on the date of final action by the ADRB.  In complying with this decision, the ABCMR has adopted the broader policy of calculating the 3-year time limit from the date of exhaustion in any case where a lower level administrative remedy is utilized.

DISCUSSION AND CONCLUSIONS:

1.  The date of application to the ABCMR is within 3 years of the decision of the ADRB; therefore, the applicant has timely filed.

2.  The applicant was discharged under the provisions of Army Regulation     635-200, chapter 3, due to court-martial with a bad conduct discharge.  He was issued an SPD Code of "JJD" with a corresponding RE Code of "4."  He applied to the ADRB for an upgrade of his discharge that was upgraded to general.  However, the ADRB did not change the applicant's RE or SPD Code. 

3.  The applicant was separated and assigned an RE and SPD Code in accordance with regulations.  The applicant has also failed to show, through the evidence submitted with his application or the evidence of record, that the RE Code of RE"4" and SPD Code of "JJD" issued to him was incorrect.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__ao___  ___ym___  __le_____  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.

		___Arthur A. Omartian___
		        CHAIRPERSON

INDEX

CASE ID	AR2003088358	
SUFFIX		
RECON		
DATE BOARDED	20040127	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	19941228	
DISCHARGE AUTHORITY	AR  635-200 chapter 3/BCD 	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	4	
2.	1021	
3.		
4.		
5.		
6.