MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:           3 March 1999                  
	DOCKET NUMBER:   AR1999019822

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr.	Loren G. Harrell		Director	
	Ms.	Joyce A. Wright		Analyst	

	The following members, a quorum, were present.

	Mr.	Raymond V. O’Connor Jr.		Chairperson	
	Mr.	Edward Williamson		Member	
	Mr.	Gary C. Miller		Member	

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  In effect, that his bad conduct discharge be upgraded to a general discharge and his Reentry (RE) Code 4 be changed to a more favorable code.

APPLICANT STATES:  That the rape charges against him were dropped and that the Army was prejudiced against him for being HIV (human immunodeficiency Virus) positive.

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant entered active duty on 29 January 1980 and served as a light weapons infantryman.  He continued to serve through a series of continuous reenlistments.

He was convicted by a general court-martial on 26 January 1994 for disobeying a lawful order by a superior commissioned officer, rape, aggravated assault, and adultery (wrongfully engaging in intercourse with another woman (not his wife)).  His sentence consisted of reduction to the pay grade of E-1, forfeiture of $200 per month for 36 months, confinement for 3 years, and a Bad Conduct Discharge.  The sentence was adjudged and approved on 26 January 1994.

On 28 August 1995, the Army Court of Military Review affirmed only so much of the sentence as provides for a bad conduct discharge, confinement for 26 months, forfeiture of $200 per month for 26 months, and reduction to the pay grade of E-1.

On 29 April 1996, the applicant was discharged from the Army pursuant to the sentence of a general court-martial and was issued a Bad Conduct Discharge Certificate.  He had served 14 years, 6 months, and 9 days of total active service and had 587 days of lost time due to confinement.  His DD Form 214 shows his RE code is “4”.

The applicant applied to the Army Discharge Review Board (ADRB) on 8 January 1998.  However, his case was ineligible for review by the ADRB due to his conviction by a general court-martial.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-11 of that regulation provides that a soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.  

Pertinent Army Regulation provide that prior to discharge or release from active duty, individuals will be assigned RE codes, based on their service record or the reason for discharge.  Army Regulation 601-210 covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the US Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of armed forces RE codes.  Table 3-6 of the regulation, in effect at the time, states that RE-4 applies to persons separated from their last period of service with a nonwaivable disqualification and includes persons being separated with a Department of the Army Bar to Reenlistment in effect. 

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.  Trial by court-martial was warranted by the gravity of the offense charged.  Conviction and discharge were effected in accordance with applicable law and regulation.

2.  The applicant had 587 days of lost time due to confinement.  Considering the nature of his offenses, his discharge appears to be appropriate.

3.  The applicant has failed to convince the Board through the evidence submitted or the evidence of record that his discharge was unjust and should be upgraded.

4.  The applicant has failed to show through the evidence submitted with his application or the evidence of record that his RE code issued to him was incorrect.

5.  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.

6.  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

RVO____  EW_____  GCM____  DENY APPLICATION

						Loren G. Harrell
						Director