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Decision Text

ARMY | BCMR | CY1997 | 9707775
Original file (9707775.rtf) Auto-classification: Denied
APPLICANT REQUESTS: That he be restored to his former rank of Sergeant (SGT) E-5 and that his reentry code be changed from RE-3 to RE-1.
APPLICANT STATES : In effect, that the Army Court of Criminal Appeals reversed his involuntary manslaughter conviction, found that he was acting in self-defense, affirmed only a concealed weapon violation and reduced his sentence to 6 months confinement. By the time his conviction was reversed, he had already served 15 months confinement. The Board can make him whole again by restoring his rank. He was honorably discharged from the Army. Nothing would make him prouder than being able to re-enter the Army.
EVIDENCE OF RECORD : The applicant’s military records show:

He was born on 22 September 1965. He enlisted in the Regular Army on 31 October 1986 for 3 years. He completed basic training and advanced individual training and was awarded military occupational specialty 11M (Fighting Vehicle Infantryman). He immediately reenlisted on 4 August 1989 for 5 years.

On 18 May 1992, the applicant began a period of pre-trial confinement.

On 26 September 1992, the applicant was convicted by a general court-martial of involuntary manslaughter, assault with a dangerous weapon and wrongfully carrying a concealed weapon. He was sentenced to confinement for 24 months, to forfeit all pay and allowances and to be reduced to pay grade E-1.

On 5 August 1993, the unexecuted portion of the applicant’s sentence to confinement was suspended for 10 months and he was released from confinement.

On 26 July 1994, the U.S. Army Court of Military Review set aside the findings of guilty of involuntary manslaughter and assault with a dangerous weapon, but affirmed the finding of guilty of wrongfully carrying a concealed weapon. It reassessed the sentence and affirmed only so much of the sentence as provided for confinement for 6 months, forfeiture of all pay and allowances for 6 months and reduction to pay grade E-1.

On 18 October 1994, the applicant was promoted to Private First Class (PFC), E-3. (The date he was promoted to Private 2, E-2 is not known.)

Under the provisions of Army Regulation 600-200, Chapter 7, the applicant had enough time remaining in service to be promoted to pay grade E-4 (normal requirement was 6 months time in grade) had his commander chosen to do so.

On 5 April 1995, the applicant was discharged, under the provisions of Army Regulation 635-200, Chapter 4, completion of required active service, in pay grade E-3 with a reentry code of Re-3. He had completed 6 years and 1 day of creditable active service and had 449 days of lost time.

On 2 May 1995, the applicant was assigned to the 357 th Chemical Company, U.S. Army Reserve. On 13 March 1996, he was relieved from that assignment for unsatisfactory participation, missing 12 training assemblies within a one year period.

Title 10, U.S. Code, section 1552, as amended, precludes any action by this Board which would disturb the finality of a court-martial conviction.

 DISCUSSION : Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

2. Trial by court-martial was warranted by the gravity of the offense charged. Even when the U.S. Court of Military Review reduced the charge to wrongfully carrying a concealed weapon, it still affirmed a sentence that included a reduction to pay grade E-1.

3. Even though the applicant was restored to duty and he concluded his service honorably, a reentry code of RE-3 is proper for an individual with either a record of time lost or a record of a court-martial conviction during his last period of service. Reenlistment ineligibility can be waived.

4. In view of the foregoing, there is no basis for granting the applicant's request.

 DETERMINATION : The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.
 BOARD VOTE :
GRANT

 GRANT FORMAL HEARING

 DENY APPLICATION


Loren G. Harrell
                                                      Director

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