RECORD OF PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:  26 February 2004
	DOCKET NUMBER:  AR2003091324

	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. Mae M. Bullock		Member	
	Mr. John T. Meixell		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 dishonorable discharge be upgraded and that his Reentry (RE) Code of "4" be changed to a more favorable code. 

2.  The applicant states the he understood the severity of his charges and accepted full responsibility for his actions.  He was initially charged with a false official statement, conspiracy, and wrongful possession of marijuana that led to his additional charges.  At the time of the incident he lost credibility with his command which was clear to him during a battalion formation when he was addressed about the incident.  He had just arrived to the command and had made a gross error.  He was already involved in a personal turmoil that dealt with family matters and now his career was ending.  At that time, his life was overwhelming with fear, bitterness, and hopelessness due to his years of service and character.  He has always displayed respect and loyalty to the officers and noncommissioned officers (NCOs) appointed over him and has given 100 percent of his ability.

3.  He also states that for his conduct, he is deeply remorseful toward his commanders and fellow soldiers who where impacted by his actions.  He is now tainted as a criminal and has made many accomplishments as a civilian.  He is now asking that his discharge be upgraded in order to enlist in the Army National Guard.  He would now like to reestablish his credibility, honor, and loyalty to his country.  He has had one very bad year out of 13 years and he should be given a chance to redeem.

4.  The applicant provides no documentation.

CONSIDERATION OF EVIDENCE: 

1.  The applicant’s military records show he entered active duty on 12 April 1984, as an aircraft structural repairer.  He continued to serve through a series of continuous reenlistments.  

2.  He was promoted to the pay grade of staff sergeant (SSG/E-6) with an effective date and date of rank (DOR) of 1 April 1994.

3.  In accordance with his pleas he was found guilty by a general court-martial on 6 May 1997, of conspiring with another to wrongfully possess marijuana, signing a false official document, wrongful possession of marijuana, wrongfully communicating a threat to another service member on two occasions, absent without leave (AWOL) on two occasions, escape from custody, and of     

breaking restriction.  His sentence consisted of a forfeiture of all pay and allowances, reduction to the pay grade E-1, confinement for 5 years, and a dishonorable discharge.  His sentence was approved on 21 October 1997.  His forfeiture of pay and allowances was waived on 27 May 1997, effective 6 May until 5 November 1997, with the direction that such funds be paid to his spouse.

4.  On 27 August 1998, the Army Court of Criminal Appeals affirmed the findings and sentence as approved by the convening authority.

5.  On 19 July 2002, the applicant was discharged from the Army pursuant to the sentence of a general court-martial and was issued a dishonorable discharge.  He was issued an RE Code of RE "4."

6.  Item 27 (REENTRY CODE) of the applicant's DD Form 214 shows the entry "4."

7.  The applicant applied to the Army Discharge Review Board (ADRB) on 9 April 2003.  However, his case was ineligible for review by the ADRB due to his conviction by a general court-martial.  This Board accepted his application (DD Form 293 [Application For the Review of Discharge or Dismissal from the Armed Forces of the United States]) in lieu of a DD Form 149 (Application for Correction of Military Record).

8.  Title 10, U. S. Code, section 1552(f) states that, with respect to records of courts-martial tried or reviewed under the Uniform Code of Military Justice, the Board's action may extend only to action on the sentence of a court-martial for purposes of clemency.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-10 of that regulation provides that a soldier will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial, after completion of appellate review and after such affirmed sentence has been duly executed.

10.  Army Regulation 635-200 governs the separation of enlisted personnel.  In pertinent part, it states that an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the soldier’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.  A general discharge is a separation from the Army under honorable conditions.  It is issued to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

11.  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.

12.  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.

13.  The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army soldiers and Reserve Component soldiers separated for cause.  It also shows the SPD code with a corresponding RE code and states that more than one RE code could apply.  The soldier’s file and other pertinent documents must be reviewed in order to make a final determination.  The SPD code of “JJD” has a corresponding RE code of "4." 

14.  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 separation is "Court-Martial, Other."  

DISCUSSION AND CONCLUSIONS:

1.  Careful consideration has been given to the applicant's contentions.  However, he has provided no evidence to show that his discharge was unjust.  He also has not provided evidence sufficient to mitigate the character of his discharge and clemency is not warranted.

2.  Trial by court-martial was warranted by the gravity of the offense charged.  Conviction and discharge were effected in accordance with applicable law and regulation.

3.  The applicant's RE Code of "4" is consistent with the basis for his separation and in this case there is no basis to correct the existing code.

4.  The applicant has failed to show, through the evidence submitted with his application or the evidence of record, that his separation which resulted in his receiving an RE Code of RE "4" was in error or unjust.  

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__ao____  __mb____  ___jm___  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	AR2003091324	
SUFFIX		
RECON		
DATE BOARDED	20040226	
TYPE OF DISCHARGE	DD	
DATE OF DISCHARGE	20020719	
DISCHARGE AUTHORITY	AR 635-200, Chapter 3, SEC IV	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	360	
2.		
3.		
4.		
5.		
6.