BOARD DATE: 16 January 2020 DOCKET NUMBER: AR20180011324 APPLICANT REQUESTS: His bad conduct discharge (BCD) be upgraded to an honorable discharge. Additionally, he requests the correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show a more favorable reentry (RE) code. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 20 March 2018 * DD Form 214, for the period ending 12 September 2008 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code (USC), Section 1552 (b). However, the Army Board for Correction of Military Records (ABCMR) 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 punished for maintaining his secrecy. He was repeatedly ordered to perform tasks by different commissioned officers and noncommissioned officers who contradicted each other. He was forbidden to divulge any of this to others. He is willing to provide dates, times, and activities, if necessary. 3. The applicant enlisted in the Regular Army on 16 June 2004, and subsequently reenlisted on 2 November 2006. 4. Court-martial charges were preferred against the applicant for violations of the Uniform Code of Military Justice (UCMJ). However, the relevant DD Form 458 (Charge Sheet) is not available for review in this case. 5. Before a special court-martial on or about 30 March 2007, at Headquarters, 19th Sustainment Command (Expeditionary) in the Republic of Korea, the applicant was convicted of the following: • one specification of being absent without leave, from on or about 2 February 2007 through on or about 21 February 2007 • one specification of failing to go to his appointed place of duty, between 30 and 31 January 2007 • one specification of absenting himself from his unit, from on or about 4 January 2007 through on or about 22 January 2007 • two specifications of disobeying the lawful command of a superior commissioned officer, on or about 29 December 2006 • one specification of violating a no contact order/command issued by a superior commissioned officer, on or about 29 December 2006 • one specification of wrongfully engaging in sexual intercourse with a woman who was not his wife, on or about 1 March 2006 6. The court sentenced the applicant to reduction in rank/grade to private/E-1, forfeiture of $867 pay per month for seven months, confinement for seven months, and separation from the service with a BCD. 7. The convening authority approved, on 27 July 2007, only so much of the sentence as provided for reduction to E-1, forfeiture of $867 pay per month for six months, confinement for seven months, and separation from service with a BCD. He ordered the sentence executed, except for the part of the sentence extending to the BCD. The record of trial was forwarded to the U.S. Army Court of Criminal Appeals for appellate review. 8. The U.S. Army Court of Criminal Appeals affirmed the applicant's sentence on 17 December 2007. 9. Special Court-Martial Order Number 58, issued by Headquarters, U.S. Army Armor Center and Fort Knox, Fort Knox, Kentucky on 3 April 2008, noted the sentence in the applicant's case had finally been affirmed and ordered the BCD duly executed. 10. The applicant was discharged on 12 September 2008, under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 3-11, as a result of court-martial. His DD Form 214 confirms his service was characterized as bad conduct. His DD Form 214 further shows in: a. Item 18 (Remarks), the following entries: • CONTINUOUS HONORABLE SERVICE: 20040616-20061101 • IMMEDIATE REENLISTMENT THIS PERIOD: 20061102-20080912 • MEMBER HAS NOT COMPLETED FIRST FULL TERM OF SERVICE b. Item 27 (Reentry Code), he was issued RE code "4" 11. The applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge. After careful consideration of his record of service and discharge proceedings, the ADRB determined he was properly and equitably discharged and denied his request on 12 September 2012. 12. The applicant petitioned the ABCMR for the correction of his records; specifically, he asked that his DD Form 214 be voided and be replaced by two separate DD Forms 214, one for each period of enlistment. The Board considered his request on 8 April 2014, determined there was no evidence to demonstrate the existence of a probable error or injustice, and denied his petition for relief. 13. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record of service, the frequency and nature of his misconduct, the results of a court-martial, the reason for his separation and whether clemency should be applied. The Board found insufficient evidence of any in-service mitigation for his misconduct and the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based upon a preponderance of evidence, the Board determined that the character of service the applicant received when separated was not in error or unjust. The Board concurred with the correction stated in the Administrative Note(s) below. 2. After reviewing the application and all supporting documents, the Board found relief was not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : :X :X :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, except for the correction stated in the Administrative Note(s) that follow, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 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. ADMINISTRATIVE NOTE(S): A review of the applicant's record shows his DD Form 214, for the period ending 12 September 2008, contains incorrect entries that could affect his eligibility for post- service benefits. As a result, amend item 18 (Remarks) of the DD Form 214 as follows: a. delete the entries: "IMMEDIATE REENLISTMENT THIS PERIOD: 20061102- 20080912" and "MEMBER HAS NOT COMPLETED FIRST FULL TERM OF SERVICE"; and b. replace with the entries: "IMMEDIATE REENLISTMENT THIS PERIOD: 20040616-20061101 and 20061102-20080912" and "MEMBER HAS COMPLETED FIRST FULL TERM OF SERVICE." 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 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 601–210 (Active and Reserve Components Enlistment Program) states an RE code is not upgraded unless it was administratively incorrect when originally issued. a. The RE code "1" applies to personnel who have completed their obligated term of active service and are considered qualified to reenter the U.S. Army if all other criteria are met. b. The RE code "3" applies to personnel who are not considered fully qualified for reentry or continuous service at time of separation, but whose disqualification is waivable. They are ineligible unless a waiver is granted. c. The RE code "4" applies to personnel separated from last period of active duty service with a nonwaivable disqualification. 3. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities for separating Soldiers from active duty and the separation codes to be entered on the DD Form 214. The separation code is an administrative code used to designate the narrative reason for separation. The separation code "JJD" is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, Chapter 3, by reason of sentence of a court-martial. The SPD/RE Code Cross Reference Table included in the regulation establishes that RE code "4" is the proper code to assign members separated with separation code "JJD." 4. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel: a. Paragraph 3-7a provided 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 provided 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. Chapter 3 provided that an enlisted person would 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. 5. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, USC, 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. 6. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. a. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, Boards shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. b. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180011324 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20180011324 5 ABCMR Record of Proceedings (cont) AR20180011324 4