| Mr. Carl W. S. Chun | Director | |
| Mrs. Carolyn G. Wade | Analyst |
| Mr. George D. Paxson | Chairperson | |
| Ms. Deborah S. Jacobs | Member | |
| Mr. Ronald E. Blakely | Member |
APPLICANT REQUESTS: That his dishonorable discharge be upgraded to general, under honorable conditions (GD).
APPLICANT STATES: In effect, that he was an excellent soldier prior to receiving the devastating news that he was infected with the Human Immunodeficiency Virus (HIV); that his misconduct was the result of not knowing how to cope with being HIV positive; and that he has completed the punishment imposed by the court and now seeks to have his discharge upgraded.
EVIDENCE OF RECORD: The applicant's military records show:
He enlisted in the Regular Army on 15 February 1989 for a period of 4 years. He enlisted for the United States Army Station/Command of Choice Enlistment Option and the U.S. Army Cash Bonus Enlistment Option. Following completion of all military training, the applicant was awarded military occupational specialty (MOS) 11H (Heavy Anti-Armor Weapons Infantryman).
The applicant served honorably. He was promoted to the rank of sergeant and received several awards and decorations. However, at some point in time after his enlistment, he contracted HIV and tested positive during screening. He was counseled about his HIV positive status, ordered to verbally tell all prospective sexual partners about his HIV status, and ordered to use condoms when engaging in sexual intercourse.
On 3 November 1995, the applicant was arraigned at Fort Carson, Colorado on the following offenses at a general court-martial convened by the Commander, Fort Carson and 4th Infantry Division (Mechanized): four specifications of assault with a means likely to produce grievous bodily harm or death; one specification of disobeying a lawful command from a superior commissioned officer, not to have unprotected sex and to inform his sex partners of his HIV status; and one specification of committing adultery on divers occasions. The applicant pled guilty to all charges. He was tried and convicted by a general court-martial on 3 November 1995 and sentenced to a dishonorable discharge, confinement for 10 years, forfeiture of all pay and allowances, and reduction to the grade of private/E-1. The sentence was approved and, except for that part of the sentence extending to a dishonorable discharge, was executed. The applicant was given credit for 9 days of pre-trial confinement against his sentence to confinement.
On 17 September 1999, the general court-martial having been affirmed and Article 71(c) having been complied with, the dishonorable discharge was ordered executed.
On 29 October 1999, the applicant was discharged from the Army after completing 6 years, 4 months, and 16 days of active military service and accruing 1,470 days of lost time.
Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 3, paragraph 3-10, provides that soldier will be given a dishonorable discharge pursuant only to an approved sentence to a general court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed.
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 this requirement.
2. Trial by court-martial was warranted by the gravity of the offenses charged. 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.
3. The Board carefully reviewed all of the applicant’s faithful and honorable service as well as his misconduct. The Board believes that his incidents of misconduct clearly diminished the quality of the applicant’s service below that meriting a general or fully honorable discharge.
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
_GDP___ __DSJ___ __REB__ DENY APPLICATION
| CASE ID | AR2001063710 |
| SUFFIX | |
| RECON | |
| DATE BOARDED | 20020326 |
| TYPE OF DISCHARGE | DD |
| DATE OF DISCHARGE | 19991029 |
| DISCHARGE AUTHORITY | AR635-200, chapter 3 |
| DISCHARGE REASON | Court-martial |
| BOARD DECISION | (NC, GRANT , DENY, GRANT PLUS) |
| REVIEW AUTHORITY | |
| ISSUES 1. | 144.9405 |
| 2. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
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