IN THE CASE OF: BOARD DATE: 26 May 2016 DOCKET NUMBER: AR20150010495 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X___ ____X___ ____X___ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 26 May 2016 DOCKET NUMBER: AR20150010495 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. IN THE CASE OF: BOARD DATE: 26 May 2016 DOCKET NUMBER: AR20150010495 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 an upgrade of his bad conduct discharge to general under honorable conditions and amendment of his reentry eligibility (RE) code. 2. The applicant states: * he wants his discharge and RE code upgraded so he may serve his country again * he requests clemency * over the past few years he has grown in every area of his life and feels he is ready to serve his country again 3. The applicant provides no additional evidence. 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 enlisted in the Regular Army on 28 February 2006 for a period of 3 years. He was honorably discharged on 7 August 2007 for immediate reenlistment. He reenlisted on 8 August 2007 for a period of 6 years. 3. He served in Iraq in support of Operation Iraqi Freedom from 24 July 2006 to 4 October 2007. 4. Headquarters, 25th Combat Aviation Brigade, Permanent Order Number  051-156, dated 20 February 2007, awarded him the Army Commendation Medal for meritorious service in Iraq in support of Operation Iraqi Freedom during the period 25 July 2006 to 25 July 2007. 5. On 29 September 2008, he was convicted by a general court-martial of: * conspiracy to commit wrongful appropriation * larceny (two specifications) * wrongful appropriation * unlawful entry with intent to commit wrongful appropriation (two specifications) 6. He was sentenced to confinement for 12 months and a bad conduct discharge. On 13 November 2008, the convening authority approved only so much of the sentence as provided for confinement for 7 months and a bad conduct discharge. 7. The U.S. Army Court of Military Review decision is not available for review. However, Headquarters, U.S. Army Fires Center of Excellence and Fort Sill, General Court-Martial Order Number 199, dated 27 August 2010, shows the applicant's sentence had been finally affirmed, Article 71(c) had been complied with, and the bad conduct discharge would be executed. 8. On 17 December 2010, he was issued a bad conduct discharge under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 3, as a result of court-martial. He completed a total of 4 years, 3 months, and 29 days of creditable active service with 172 days of lost time. 9. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows in: * item 25 (Separation Authority) – Army Regulation 635-200, Chapter 3 * item 26 (Separation Code) – JJD * item 27 (Reentry Code) – 4 * item 28 (Narrative Reason for Separation) – Court-martial, Other REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel. a. Paragraph 3-7b provides that 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. b. Paragraph 3-11 states a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or a special court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed. 2. 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. 3. Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment processing into the Regular Army, U.S. Army Reserve, and Army National Guard. Chapter 3 prescribes basic eligibility for prior-service applicants for enlistment and includes a list of Armed Forces RE codes. * RE-1 applies to persons completing an initial term of active service who were fully qualified when last separated * RE-2 applies to Soldiers separated prior to 28 February 1995 who did not meet reentry criteria at the time of separation * RE-3 applies to persons who are not considered fully qualified for reentry or continuous service at the time of separation, but the disqualification is waivable * RE-4 applies to persons separated from last period of service with a non-waivable disqualification 4. Army Regulation 635-5-1 (Separation Program Designator (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 code to be used for these stated reasons. The regulation states the reason for a discharge based on SPD code JJD is court-martial, other and the regulatory authority is Army Regulation 635-200, chapter 3. 5. The SPD/RE Code Cross Reference Table, dated 15 June 2006, shows Soldiers assigned an SPD code of JJD will be assigned an RE code of 4. DISCUSSION: 1. A trial by court-martial was warranted by the gravity of the offenses charged. The applicant's conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which he was convicted. 2. His record of service during his last enlistment included one general court-martial conviction and 172 days of lost time. As a result, his record of service was not satisfactory. His service is insufficiently meritorious to warrant a general discharge. 3. 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. Although his records show he was awarded the Army Commendation Medal for meritorious service in Iraq in support of Operation Iraqi Freedom, this service was not sufficiently mitigating to overcome the severity of his subsequent misconduct. As a result, clemency is not warranted in this case. 4. His request for amendment of his RE code so he could serve his country again was carefully considered. However, the evidence of record confirms his RE code was assigned based on his discharge under the provisions of Army Regulation 635-200, chapter 3. The RE code associated with this type of discharge is an RE code of 4, which applies to persons separated from their last period of service with a non-waivable disqualification. 5. His RE code was administratively correct and in conformance with applicable regulations at the time of his discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150010495 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150010495 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2