IN THE CASE OF:
BOARD DATE: 15 May 2014
DOCKET NUMBER: AR20130015542
THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:
1. Application for correction of military records (with supporting documents provided, if any).
2. Military Personnel Records and advisory opinions (if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests reinstatement of his rank of sergeant first class (SFC)/E-7.
2. The applicant states that:
a. His rank was not taken from him as part of his court-martial sentence. He lost his rank when he was incarcerated.
b. He served proudly for 13 years with multiple deployments. He would like his discharge to be a reflection of his honorable time served.
3. The applicant provides a DD Form 293 (Application for Review of Discharge from the Armed Forces of the United States).
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the Regular Army on 28 July 1987. He held military occupational specialty 11B (Infantryman).
2. On 1 April 2011, he was convicted by a general court-martial in accordance with a single charge, with seven specifications, of violation of Article 120, of the Uniform Code of Military Conduct (UCMJ). The sentencing information is not available.
3. Headquarters, U.S. Army Fires Center of Excellence and Fort Sill, General Court-Martial Order Number 61, dated 28 March 2012, shows confinement for
10 months and a Bad Conduct Discharge (BCD) were affirmed. Article 71(c) of the UCMJ having been complied with, the BCD was ordered executed.
4. The applicant was discharged on 27 July 2012 in the rank of private (PV1)/E-1 with a BCD. He had completed 14 years, 3 months, and 27 days of active duty service.
5. His Enlisted Record Brief, dated 6 July 2011, shows his rank as PV1 with date of rank of 1 April 2011.
6. Army Regulation 600-8-19 (Enlisted Promotions and Reductions) provides in paragraph 10-13b that an enlisted Soldier, serving in a grade above PV1, with an approved court-martial sentence including a bad conduct or dishonorable discharge, confinement, or hard labor without confinement is reduced on the date the convening authority approves the sentence (UCMJ, Art. 58(a)).
7. Army Regulation 15-185 (Army Board for Correction of Military Records) sets forth the policy and procedures for the ABCMR. Paragraph 2-9 provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.
DISCUSSION AND CONCLUSIONS:
1. He contends his SFC rank should be restored because reduction was not included in his general court-martial sentence. He states he lost his rank when he was incarcerated.
2. The available evidence shows the applicant was reduced to PV1 because of he had an approved court-martial sentence which included a BCD. His reduction was effective 1 April 2011, the date of his court-martial.
3. The regulations governing the Board's operation require that the discharge process must be presumed to have been in accordance with applicable law and regulations unless the applicant can provide evidence to overcome that presumption.
4. In view of the foregoing, there is an insufficient evidentiary basis for granting the applicants requested relief.
BOARD VOTE:
________ _______ _________ 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.
______________X______________
CHAIRPERSON
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.
ABCMR Record of Proceedings (cont) AR20110010831
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ABCMR Record of Proceedings (cont) AR20130015542
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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