ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	

	BOARD DATE:  28 August 2019

	DOCKET NUMBER:  AR20170003029


APPLICANT REQUESTS:  reinstatement on active duty in the U.S. Army and a 
personal appearance before the Board.  

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record)
*	Self-Authored Statement
*	DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) (2)
*	Request and Authority for Convalescent Leave/Subsisting Out
*	Memorandum (page 2 only)
*	Letter of Support
*	Memorandums, subject:  Maltreatment and Discrimination Toward the Applicant
*	Congressional Letter, Nydia M. Velaquez
*	Army Review Board Agency (ARBA) Congressional Liaison Inquiry Response

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, United 
States Code (USC), section 1552 (b); however, the Army Board for Correction of 
Military Records conducted a substantive review of this case and determined it is in the 
interest of justice to excuse the applicant's failure to timely file. 

2.  The applicant states he was involuntarily separated from the Army and requests to 
be reinstated on active duty.  He explains he has exhausted all administrative remedies, 
such as corrective procedures and appeals.

3.  The applicant provides: 

	a.  A self-authored statement which states he was wronged by his commanding 
officer (CO).  In 2006, he received nonjudicial punishment (NJP), under Uniform Code 
of Military Justice (UCMJ), Article 15 for being absent without leave (AWOL), however, 
he was later told by his CO that the charges were dropped.  He further adds, signatures 
were altered on the DD Form 2627.  Also, he believes his CO abused her authority on a 
number of occasions, by refusing to grant convalescent leave after he underwent hand 
surgery and interfering with his naturalization appointments which were required for him 
to become a U.S. citizen.  Although he broke his hand, he worked hard and completed 
advanced training.  Finally, he states he was a proud, American Soldier with love for this 
nation.

	b.  DD Form 2627, dated 5 April 2006, which states:

*	Block 1:  the applicant was considered for punishment under Article 15, for 
being absent from his place of duty from 10 March 2006 to 13 March 2006 
*	Block 3:  having been afforded the opportunity to consult with counsel, his 
decision was: (a) I demand trial by court-martial

	c.  Request and Authorization For Convalescent Leave/Subsisting Out, dated 
2 March 2006, signed by the doctor on the Hand Surgery Staff at Landstuhl Army 
Medical Center, which states the applicant was diagnosed with small finger metacarpal 
malunion, metacarpophalangeal contracture.  The doctor recommended unit 
convalescent leave from 2 March 2006 to 5 March 2006.

	d.  The second page of a Memorandum, signed by his CO, which states the 
applicant failed to sign out on leave properly and did not return as she authorized.  She 
determined that he did not receive clear guidance and changed his status from AWOL 
to authorized absence.  She explains the applicant was outside of the area during his 
convalescent leave period.

	e.  A letter of support from a former Soldier and co-worker, which states the 
applicant is highly educated which was not average for his military occupational 
specialty and believes this could serve as a very useful tool for the Army.  He adds that 
while working with the applicant, he was always respectful and demonstrated 
professional and courteous behavior.  

	f.  Memorandum, subject:  Maltreatment and Discrimination toward the applicant, 
dated 19 April 2006, in which the applicant details the abuse and discrimination he 
endured by his CO while assigned to his first duty station in Vilseck, Germany.  

	g.  Congressional Letter, from Congresswoman Nydia M. Velaquez, representing the 
7th Congressional District in the House of Representatives, dated 9 December 2016, 
which instructs the applicant to submit an application to the Army Board for Correction 
of Military Records (ABCMR).

4.  A review of the applicant’s service records shows:

	a.  He enlisted in the Regular Army (RA) on 13 July 2004 in the grade of private first 
class (PFC)/E-3.

	b.  He served in Vilseck, Germany from 1 December 2004 to 29 September 2006.

	c.  On 5 April 2006, he accepted nonjudicial punishment (NJP), Article 15, for being 
absent from his place of duty from 10 March 2006 to 13 March 2006.  He demanded 
trial by court-martial.

	d.  On 19 September 2006, he was convicted by a special court-martial of:

*	two specifications of being absent without leave from 4 February 2006 to 
17 February 2006 and 10 March 2006 to 13 March 2006
*	one specification of disobeying a lawful order by not contacting his CO on her 
cellular phone when departing the U.S. Consulate in Frankfurt
*	one specification of disobeying a lawful order to stand up and go to parade 
rest
*	one specification of disobeying a lawful order to remain in 
Grafenwoehr/Vilseck area during his convalescent leave
*	two specifications of using disrespectful language and being disrespectful in 
deportment toward a superior noncommissioned officer

	e.  The court sentenced him to reduction to E-1, forfeiture of $849 pay for 12 
months, confinement for 12 months and a bad conduct discharge.

	f.  On 12 June 2007, per the Special Court-Martial Order Number 13, the convening 
authority approved only so much of the sentence as provides for reduction to E-1, 
forfeiture of $849 pay per month for 11 months, confinement for 11 months and a bad 
conduct discharge and except for the part of the sentence extending to a bad-conduct 
discharge will be executed.  

	g.  Documentation that indicates the date the sentence was affirmed is not contained 
in the available record.

	h.  On 27 March 2009, the United States Army Court of Criminal Appeals ordered 
the amendment of Special Court-Martial Order Number 13 to reflect the date 
promulgating order correctly as “30 May 2007” and the Findings of Specification 3 of 
Charge III correctly as “Not Guilty”.

	i.  Headquarters, U.S. Army Fires Center of Excellence and Fort Sill, Fort Sill, OK, 
Special Court-Martial Order Number 93, dated 25 June 2010, shows that after 
completion of all required post-trial and appellate reviews, the convening authority 
ordered confinement for 10 months, forfeiture of $849 pay for 10 months and the 
sentence to a bad conduct discharge executed.

	j.  On 20 August 2010, the applicant was discharged from the Army under the 
provisions of chapter 3, Army Regulation 635-200 (Personnel Separations – Enlisted 
Personnel), in effect at the time, with a bad conduct discharge.  His DD Form 214 
shows:

*	Item 12c (Net Active Service This Period):  5 years, 4 months, and 1 day
*	Item 23 (Type of Separation):  Discharge
*	Item 24 (Character of Service): General, Under Honorable Conditions
*	Item 26 (Separation Code):  JJD, Court-Martial
*	Item 27 (Reentry Code): 4

4.  The applicant applied to the Army Discharge Review Board for an upgrade of his 
discharge, which was approved by the Board on 12 January 2012.  The previous DD 
Form 214 was voided and a new DD Form 214 was issued which changed the 
characterization of service from bad conduct to general, under honorable conditions.

5.  By regulation, AR 635-200, a member will be given a bad conduct discharge 
pursuant only to an approved sentence of a general or special court-martial after 
completion of appellate review and after such affirmed sentence has been ordered duly 
executed.

6.  By regulation, AR 601-210 (Active and Reserve Components Enlistment Program) in 
effect at the time, covers eligibility criteria, policies, and procedures for enlistment and 
processing into the RA and the U.S. Army Reserve.  Chapter 3 of the regulation 
prescribes basic eligibility for prior service applicants for enlistment in the RA.  The 
chapter also includes a list of Armed Forces RE codes, including RA RE codes:

*	RE-1 applies to persons completing his/her term of active service who is 
qualified to reenter the U.S. Army, if all other criteria are met
*	RE-3 applies to persons who are not considered fully qualified for reentry but 
qualification is waivable
*	RE-4 applies to persons separated from last period of service with a 
nonwaivable qualification and are ineligible for enlistment.

BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board determined 
partial relief was warranted.  One potential outcome discussed was to deny the 
applicant’s request based upon a failure of the applicant to provide evidence of an error 
or injustice, or any type of post-service achievement to show that he has learned and 
grown from the events leading to his separation.  However, the Board concluded to 
allow the applicant to show that he has learned and grown from the strictly military 
offenses leading to his separation by granting clemency in the form of changing his RE 
Code to “3”; thus, offering an opportunity to reenter the service with a waiver, if the 
applicant can demonstrate growth from the events leading to his separation.



BOARD VOTE:
Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:X	:	:X	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:X	:	DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant a 
recommendation for relief.  As a result, the Board recommends that all Department of 
the Army records of the individual concerned be corrected by reissuing the applicant a 
DD Form 214 showing his Re-entry (RE) code changed to “3”.
	  
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.


REFERENCES:

1.  Title 10, USC, section 1552(b), provides that applications for correction of military 
records must be filed within three 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 three-year statute of 
limitations if the ABCMR determines it would be in the interest of justice to do so.

2.  Army Regulation (AR) 635-200, (Personnel Separations – Enlisted Personnel), in 
effect at the time, provides for separation of enlisted personnel.  Chapter 3 of this 
regulation states that a member will be given a bad conduct discharge pursuant only to 
an approved sentence of a general or special court-martial after completion of appellate 
review and after such affirmed sentence has been ordered duly executed.

3.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program), in 
effect at the time, covers eligibility criteria, policies, and procedures for enlistment and 
processing into the RA and the U.S. Army Reserve.  Chapter 3 of the regulation 
prescribes basic eligibility for prior service applicants for enlistment in the RA.  The 
chapter also includes a list of Armed Forces RE codes, including RA RE codes:

*	RE-1 applies to persons completing his/her term of active service who is 
qualified to reenter the U.S. Army, if all other criteria are met
*	RE-3 applies to persons who are not considered fully qualified for reentry but 
qualification is waivable
*	RE-4 applies to persons separated from last period of service with a 
nonwaivable qualification and are ineligible for enlistment


ABCMR Record of Proceedings (cont)	 AR20170003029

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