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 applicants 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 applicants 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 357th 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
ARMY | BCMR | CY1997 | 9707775
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. 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. Even though the applicant was restored to duty and he concluded his service honorably, a reentry code of RE-3 is proper for...
ARMY | BCMR | CY2011 | 20110015743
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. The evidence of record shows the applicant was convicted by a general court-martial of one specification of manslaughter. He has not provided sufficient evidence or argument to show his discharge should be upgraded to an under other than honorable conditions discharge.
ARMY | BCMR | CY2007 | 20070001699
The applicant requests, in effect, an upgrade of his dishonorable discharge to a general under honorable conditions discharge. General Court-Martial Order Number 32, dated 14 December 1992, shows that the convening authority approved the first court-martial finings and sentence except for that part of the sentence extending to a dishonorable discharge, will be executed. The applicant's contention that his dishonorable discharge should be upgraded to a general under honorable conditions...
ARMY | BCMR | CY2013 | 20130000352
The applicant requests an upgrade of his bad conduct discharge to honorable. 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. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of Army Regulation 635-200 (Personnel...
ARMY | BCMR | CY2011 | 20110022000
His record contains a DD Form 214 which shows he was discharged on 1 March 1991 under the provisions of Army Regulation 635-200 (Personnel Separations Active Duty Enlisted Administrative Separations), chapter 3, as a result of court-martial with a BCD. It states, in pertinent part, that prior to discharge or release from active duty, individuals will be assigned RE codes, based on their service records or the reason for discharge. The DA Form 4833 was completed prior to the applicants...
ARMY | BCMR | CY2008 | 20080007924
The applicant requests, in effect, that he be reinstated into the Army, his pay grade of E-4 be restored and that his RE (Reentry) Code be changed from a "4" to a "1" for the purposes of reenlistment only. Article 58a of the Uniform Code of Military Justice specifies that unless otherwise provided in regulations to be prescribed by the Secretary concerned, a court-martial sentence of an enlisted member in pay grade above E-1, as approved by the convening authority, that includes a...
ARMY | BCMR | CY2010 | 20100012697
IN THE CASE OF: BOARD DATE: 23 November 2010 DOCKET NUMBER: AR20100012697 THE BOARD CONSIDERED THE FOLLOWING 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. At the time of his offenses the applicant was 29 years of age.
ARMY | BCMR | CY2010 | 20100012133
IN THE CASE OF: BOARD DATE: 10 November 2010 DOCKET NUMBER: AR20100012133 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. The applicant requests upgrade of his bad conduct discharge (BCD) to a general discharge. The conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which the applicant was convicted.
ARMY | BCMR | CY2011 | 20110024677
On 11 August 1969, he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), paragraph 11-1a, as a result of court-martial with a dishonorable discharge. Army Regulation 635-5 (Separation Documents), in effect at the time of the applicant's discharge, provided the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPN codes to be entered on the DD Form 214. b. Paragraph 3-7b...
ARMY | BCMR | CY2010 | 20100025147
The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 3-10, as a result of court-martial, with a dishonorable discharge. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. The applicant contends his dishonorable discharge should be upgraded.