ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 19 April 2019 DOCKET NUMBER: AR20180016059 APPLICANT REQUESTS: * upgrade of his bad conduct discharge to honorable * amend his reentry (RE) code from "3" (waiver required) to "1" (no limitations) * personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Honorable Discharge Certificate * Oath of Reenlistment FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). 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 served an honorable period of service and deployed to Iraq. For the past 4 years, he has been working for the U.S. Postal Service; he also obtained his Associate's degree. 3. The applicant's service records show: a. He enlisted into the Regular Army on 10 September 2008 for a term of 3 years and 22 weeks. Following initial training, orders assigned him to Fort Carson, CO; he arrived at the 60th Ordnance Company on 19 March 2009. b. He deployed to Iraq from 15 November 2009 to 15 February 2010. On 27 May 2010, he immediately reenlisted for a 4-year term. His leadership promoted him to specialist (SPC), effective 12 September 2010. c. In March 2011, the applicant failed his Army Physical Fitness Test. On 9 August 2011, his chain of command suspended all favorable personnel actions for the applicant based on an unidentified adverse reason. d. Orders, dated 19 October 2011, showed the applicant was directed to report to the Transition Center, on 10 February 2012, for release from active duty and transfer to the U.S. Army Reserve Control Group (Reinforcement). As of the aforementioned reporting date, he would have completed 1 year, 8 months, and 15 days of his second enlistment (his service record does not show the reason for this separation). e. On 10 November 2011, the applicant departed his Fort Carson unit in an absent without leave (AWOL) status. Civilian authorities arrested the applicant and placed him in confinement, effective 15 November 2011; at some point prior to 25 January 2012, civilian authority returned the applicant to military control. f. On 25 January 2012, a general court-martial convicted the applicant of being an accessory after the fact by assisting a person who had stolen an ATM (automated teller machine) and U.S. currency valued at more than $500; for being AWOL from 10 to 13 November 2011; for stealing another Soldier’s car on 10 November 2011; and for unlawfully carrying a concealed pistol. (1) The court sentenced him to 5 months confinement, reduction from SPC to private/E-1, and a bad conduct discharge. He was confined on the same date as sentence imposition. (2) On 7 February 2012, the applicant was assigned to the U.S. Army Personnel Control Facility, with confinement at Fort Leavenworth, KS. (3) On 7 June 2012, with the exception of the bad conduct discharge, the general court-martial convening authority approved the sentence and ordered its execution. g. At some point before 4 April 2013, the applicant's appellate review was completed. On 4 April 2013, a general court-martial order (GCMO) announced the U.S. Army Court of Criminal Appeals corrected the applicant's sentence by crediting him 71 days toward his confinement; the GCMO ordered the execution of the applicant's bad conduct discharge and he was discharged accordingly on 23 May 2014. h. His DD Form 214 (Certificate of Release or Discharge) showed he completed 3 years, 11 months, and 27 days of his second term of enlistment, with lost time from 20111115 to 20120318. He had continuous honorable service from 20080910 to 20100526. His separation code (SPD) was "JJD" and his RE code was "4." He was awarded or authorized: * Army Achievement Medal (2nd Award) * National Defense Service Medal * Iraq Campaign Medal with Arrowhead * Global War on Terrorism Service Medal * Army Service Ribbon * Overseas Service Ribbon 4. In regards to the applicant's request for a personal appearance, Army Regulation 15- 185, states an applicant is not entitled to a hearing before the Board; however, the request for a hearing may be authorized by a panel of the Board or by the Director of ABCMR. 5. An RE code is assigned based on the reason and authority for separation. Soldiers separated because of a bad conduct discharge are issued the SPD of "JJD." The Army's SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army Soldiers; it shows the SPD code of "JJD" has a corresponding RE code of "4." 6. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. The Board is not empowered to re-adjudicate or set aside a conviction, but can only change the severity of the sentence imposed. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. BOARD DISCUSSION: 1. After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The applicant’s contentions were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. He did not provide character witness statements or evidence of post-service achievements for the Board to consider. Based upon the record, the Board agreed that the applicant's discharge characterization and reentry code were warranted as a result of the misconduct. 2. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 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, 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): 1. AR 635-8 (Separation Processing Documents) states the DD Form 214 will list all Federally-recognized awards and decorations for all periods of service. Department of the Army General Orders Number 13, dated 2014, awarded the Meritorious Unit Commendation to the 60th Ordnance Company for the period 15 November 2009 to 5 November 2010. 2. As a result, amend his DD Form 214, ending 23 May 2014 by adding the Meritorious Unit Commendation. REFERENCES: 1. Title 10, USC, 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 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. With respect to courts-martial, and related administrative records pertaining to court-martial cases tried or reviewed under the UCMJ, action to correct any military record of the Secretary's Department may extend only to actions taken by reviewing authorities under the UCMJ or action on the sentence of a court- martial for purposes of clemency. The Secretary of the Army shall make such corrections by acting through boards of civilians within the executive part of the Army. 2. AR 635-200 (Active Duty Enlisted Administrative Separations), in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a stated an honorable discharge was separation with honor. Issuance of an honorable discharge certificate was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and performance of duty, or was otherwise so meritorious that any other characterization would clearly be inappropriate. Where there were infractions of discipline, commanders were to consider the extent thereof, as well as the seriousness of the offense. An honorable discharge could be furnished when disqualifying entries in the Soldier's military record was outweighed by subsequent honest and faithful service over a greater period of time. It was the pattern of behavior, and not the isolated instance, which commanders should consider as the governing factor. b. Paragraph 3-7b stated a general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 3-11 (Bad Conduct Discharge). A Soldier were given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review had to have been completed and the affirmed sentence ordered duly executed. 3. AR 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 has the discretion to hold a hearing; applicants do not have a right to appear personally before the Board. The Director or the ABCMR may grant formal hearings whenever justice requires. 4. AR 635-5-1 (SPD) states the SPD of "JJD" is for Soldiers discharged due to a court- martial. The referenced authority is chapter 3, AR 635-200. 5. AR 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the RA, USAR, and ARNG. Table 3-1 includes a list of the RA RE codes: * RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army; they are qualified for enlistment if all other criteria are met * RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable; they are ineligible unless a waiver is granted * RE-4 applies to Soldiers with a nonwaivable disqualification 6. The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers. This cross reference table shows the SPD code and a corresponding RE code. The SPD code of "JJD" has a corresponding RE code of "4." //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180016059 5 1