IN THE CASE OF:
BOARD DATE: 14 August 2014
DOCKET NUMBER: AR20130021323
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 correction his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his rank as sergeant (SGT)/E-5.
2. The applicant states:
* his separating rank should be corrected to show E-5, reflecting the overturning of his court-martial conviction
* he received notice from his lawyer that his case was overturned and that his rank of E-5 was restored
3. The applicant provides:
* Headquarters, 82nd Airborne Division, Special Court-Martial Order (SPCMO) Number 2
* DD Form 214
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the Regular Army on 12 May 2005. He served as an infantryman in Iraq and Afghanistan. He was promoted to the rank of SGT on 1 May 2009.
2. He provided Headquarters, 82nd Airborne Division, SPCMO Number 2, dated 18 April 2013, which shows he was convicted by a special court-martial in accordance with his pleas on 5 April 2012 of:
* violating a lawful general order (possessing an alcoholic beverage)
* being cruel by spraying fire extinguisher chemical at four Soldiers (four specifications)
* assault by unlawfully spraying fire extinguisher chemical on the body and in the face of four Soldiers (four specifications)
* unlawful entry with intent to commit assault and battery upon a Soldier
* drunk and disorderly conduct
3. He was sentenced to be reduced to E-4 and confined for 2 months.
4. His records are void of the specific facts and circumstances surrounding his discharge action. However, his DD Form 214 shows he was discharged under honorable conditions (general) on 21 February 2013 under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel),Active duty Enlixted Administraive Separations paragraph 5-8, for parenthood. He completed a total of 7 years, 9 months, and 10 days of creditable active service.
5. His DD Form 214 shows in:
* Item 4a (Grade, Rate or Rank), the entry SPC (specialist)
* Item 4b (Pay Grade), the entry E04
* Item 12i (Effective Date of Pay Grade), the entry "2012 04 05 [5 April 2012]"
6. Headquarters, 82nd Airborne Division, SPCMO Number 2 also shows the convening authority disapproved the findings of guilty and the sentence of the applicant's 2012 court-martial on 18 April 2013. The order states all rights, privileges, and the property of which the applicant had been deprived by virtue of these proceedings will be restored.
DISCUSSION AND CONCLUSIONS:
1. The evidence shows the applicant's rank was reduced from SGT/E-5 to SPC/E-4 on 5 April 2012 for misconduct (special court-martial).
2. He was discharged in the rank of SPC/E-4 on 21 February 2013.
3. The evidence also shows the convening authority disapproved the findings of guilty and the sentence of the applicant's 2012 special court-martial and restored all rights, privileges, and property on 18 April 2013, 2 months after the applicant's discharge.
4. Based on the foregoing, the SPCMO provided by the applicant is accepted as sufficient evidence with which to amend items 4a, 4b, and 12i of his DD Form 214.
BOARD VOTE:
___X____ ___X____ ___X____ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:
a. deleting the current entry in item 4a of his DD Form 214 and replacing it with the entry "SGT,"
b. deleting the current entry in item 4b of his DD Form 214 and replacing it with the entry "E05,"
c. deleting the current entry in item 12i of his DD Form 214 and replacing it with the entry "2009 05 01," and
d. paying him any monies due as a result of these corrections.
___________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) AR20130021323
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ABCMR Record of Proceedings (cont) AR20130021323
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