BOARD DATE: 18 July 2017 DOCKET NUMBER: AR20160002761 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 BOARD DATE: 18 July 2017 DOCKET NUMBER: AR20160002761 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. BOARD DATE: 18 July 2017 DOCKET NUMBER: AR20160002761 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 a discharge under other than honorable conditions * amendment of his reentry eligibility (RE) code from RE-3/RE-3B/RE-3C to RE-2B/RE-2C 2. The applicant states he believes his character of service and his RE codes are inequitable. The punishment was too severe for the offense committed. 3. The applicant provides: * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Special Court-Martial Order Number 187 * Special Court-martial Order Number 442 * U.S. Army Court of Military Review Memorandum Opinion * DA Form 2-1 (Personnel Qualification Record – Part II) * DA Form 2-2 (Insert Sheet to DA Form 2-1 – Record of Court-Martial Conviction) 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 5 October 1979. He held military occupational specialty 11B (Infantryman). He served in Germany from 23 October 1979 to 5 August 1981. 4. On 5 December 1980, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for willfully disobeying a lawful order, being disrespectful to a noncommissioned officer, and twice failing to go at the time prescribed to his appointed place of duty. 5. On 20 August 1980, he again accepted NJP under the provisions of Article 15 of the UCMJ for failing to go at the time prescribed to his appointed place of duty. His punishment consisted of a reduction to E-2, forfeiture of pay, and extra duty. 6. On 6 August 1981, he was arraigned at Headquarters, 1st Armored Division, Germany, pled guilty, and was tried by a special court-martial for the charge and one specification of stealing (larceny) one pound of trinitrotoluene (commonly known as TNT), the property of the United States. The court found him guilty as charged and sentenced him to confinement at hard labor for 2 months, forfeiture of pay for 6 months, reduction to pay grade E-1, and a bad conduct discharge. 7. On 9 October 1981, the convening authority approved the sentence and, except for the bad conduct discharge, ordered the sentence executed. The record of trial was forwarded to the Judge Advocate General of the Army for appellate review. 8. The applicant was confined at Fort Leavenworth, KS, from 6 August 1981 to 24 September 1981. Upon release from confinement, he was placed in an indefinite excess leave status pending appellate review. 9. On 9 April 1982, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence. 10. Special Court-Martial Order Number 442 issued by the U.S. Disciplinary Barracks, Fort Leavenworth, KS, on 25 August 1982 shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's bad conduct discharge duly executed. 11. The applicant was discharged on 24 September 1982. His DD Form 214 shows he was discharged in the rank/grade of private/E-1 as a result of court-martial conviction in accordance with Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 3. He completed 2 years, 10 months, and 1 day of creditable active military service with lost time from 6 August to 24 September 1981. He was in an excess leave status from 25 September 1981 to 24 September 1982. His service was characterized as bad conduct. He was assigned separation program designator (SPD) code JJD and RE code RE-4. 12. His DD Form 214 also shows he was awarded or authorized the: * Sharpshooter Marksmanship Qualification Badge with Rifle Bar * 1st Class Gunner Marksmanship Qualification Badge with Grenade Bar 13. On 12 August 1986, he was issued a DD Form 215 (Correction to DD Form 214) that amended his RE code from RE-4 to RE-3, RE-3B, and RE-3C. 14. There is no indication he petitioned the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that 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. 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. c. Paragraph 3-7c states a discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, security reasons, or for the good of service in selected circumstances. d. Paragraph 3-11 states a member 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 ordered duly executed. 2. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 3. Title 10, U.S. Code, section 1552, provides that the Secretary of a Military Department may correct any military record of the Secretary's Department when the Secretary considers it necessary to correct an error or remove an injustice. With respect to records of courts-martial and related administrative records pertaining to court-martial cases tried or reviewed under the Uniform Code of Military Justice, action to correct any military record of the Secretary's Department may extend only to correction of a record to reflect actions taken by reviewing authorities under the Uniform Code of Military Justice or action on the sentence of a court-martial for purposes of clemency. Such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that Military Department. 4. Army Regulation 635-5-1 (Separation Program Designator Codes) states SPD codes are three-character alphabetic combinations, which identify reasons for and types of separation from active duty. SPD code JJD is the correct code for Soldiers separating under the provisions of Army Regulation 635-200, chapter 3, as a result of court-martial. 5. 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 RE codes. * RE–1 – applied to Soldiers who were fully qualified when last separated and are fully qualified for reenlistment * RE-2 – applied to persons separated for the convenience of the government – no longer used by the Army * RE-3 – applied to persons who are not qualified for continued Army service but the disqualification is waivable * RE-3B – applied to persons who have lost time during their last period of service * RE-3C – applied to persons who completed over 4 months of service but do not meet basic eligibility pay grade and are denied reenlistment * RE-4 – applied to persons separated with no waivable disqualification DISCUSSION: 1. The applicant was convicted by a special court-martial for larceny. His chain of command determined his trial by a special court-martial was warranted by the gravity of the offense charged. He received a bad conduct discharge pursuant to an approved sentence of a special court-martial. 2. The appellate review was completed and the affirmed sentence was ordered duly executed. All requirements of law and regulation were met with respect to the conduct of the court-martial and the appellate review process, and the rights of the applicant were fully protected. He violated the UCMJ and the court punished him for it. The court did not consider his offense warranted any characterization higher than bad conduct. 3. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. By law, this Board 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. 4. He was initially assigned an RE code RE-4 but was later issued a DD Form 215 amending his RE code to RE-3. Based on his court-martial conviction, lost time, and grade, he was ineligible to reenlist at the time of separation. An RE code RE-1 would not have been appropriate and RE code RE-2 is no longer used by the Army. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160002761 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002761 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2