PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:           20 June 2000      
	DOCKET NUMBER:   AR2000035758

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

	Mr. Carl W. S. Chun		Director	
	Ms. McKim-Spilker		Analyst	

  The following members, a quorum, were present:

	Mr. Van B. Cunningham		Chairperson	
	Mr. James E. Anderholm		Member	
	Mr. Ernest W. Lutz, Jr.		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

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

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.
2.  The applicant requests, in effect, that his Bad Conduct Discharge (BCD) be upgraded to an honorable discharge (HD).

3.  He states, in effect, that he was involved in an accidental shooting which caused the death of a close friend; that overall he was an excellent soldier until the incident leading to his discharge; and, that he has been a model citizen since his discharge from the Army.

4.  The applicant’s military records show that on 26 November 1985 he enlisted as a private first class/E-3 in the Regular Army for a period of 3 years.  He successfully completed basic combat training and advanced individual training in military occupational specialty 76Y (Unit Supply Specialist) at Fort Jackson, South Carolina.  

5.  On 11 April 1986 he departed Fort Jackson, South Carolina, in casual status en route to Germany. 

6.  On 1 April 1987, while in Germany, he was promoted to specialist/E-4. 

7.  On 27 March 1988, in Germany, he was honorably discharged for the purpose of immediate reenlistment.  On 28 March 1988 he reenlisted in the RA for a period of 4 years.  At the time of his reenlistment he held the rank of specialist/E-4 and had completed 2 years, 4 months, and 2 days of prior active honorable service.  

8.  On 11 April 1988 the applicant was awarded the Army Achievement Medal for meritorious service from 13 April 1986 to 13 April 1988.

9.  On 24 April 1988 he departed Germany in casual status en route to Fort Benning, Georgia, for attendance at parachutist school, and further assignment to the 5th Special Forces Group, Fort Campbell, Kentucky.  

10.  On 1 January 1989, while at Fort Campbell, Kentucky, the applicant was promoted to sergeant/E-5.

11.  On 30 August 1990 the applicant departed Fort Campbell, Kentucky, en route to Saudi Arabia. 

12.  On 15 February 1991 a suspension of favorable action was initiated pending the applicant’s court-martial for involuntary manslaughter.  He was returned to Fort Campbell, Kentucky, to await court-martial and the return of the 5th Special Forces Group Legal Office. 

13.  On 26 June 1991 he was convicted by a general court-martial for involuntary manslaughter.  He was sentenced to a bad conduct discharge, confinement for 15 months, a forfeiture of $400 pay per month for 15 months, and reduction to the grade of private/E-1.  

14.  On 9 September 1991 the appropriate authority approved the sentence adjudged and ordered the sentence executed except for the part of the sentence extending to the bad-conduct discharge.

15.  On 19 June 1992 the applicant was released from confinement and placed on excess leave pending the appellate review of his bad-conduct discharge.

16.  On 15 July 1992 the applicant was discharged, in absentia, after completing 6 years, 7 months, and 20 days active military service.

17.  The record contains a statement from the applicant’s trial defense counsel dated 12 November 1992.  In this statement, the defense counsel indicated that the applicant pled guilty to charges stemming from an accidental shooting; that, although tragic, the incident was the result of soldiers who became complacent over firearm safety; and, that his investigations revealed that there were several accidental discharges of firearms within the unit and that the unit had an overall lackadaisical attitude to firearm safety.  He further stated that he represented numerous soldiers involved in accidental discharge of weapons in Saudi Arabia, and that the applicant’s case was the only one that went to a court-martial because the other incidents only resulted in serious injuries and loss of limbs.

18. AR 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3, paragraph 3-11, provides that a soldier will be given a punitive discharge (BCD or DD) 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.

CONCLUSIONS:

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 regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted

2.  The overall quality of the applicant’s last period of service does not warrant an upgrade of the discharge.  However, his prior term of service, which included 2 years, 4 months, and 2 days of honorable service, should be considered a complete and unconditional separation. 

3.  Although the applicant was not eligible for a complete and unconditional separation on 27 March 1988, the honorable discharge issued to him for the purpose of immediate reenlistment terminated a period covering more than 2 years of honorable service.

4.  In consideration of the foregoing findings and conclusions, and in recognition of his more than 2 years of good service, it would be unjust to consider his honorable discharge of 27 March 1988 as other than a complete and unconditional separation from the military service.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected to show that the individual concerned was eligible for a complete and unconditional separation from the military service at the time of his honorable discharge on 27 March 1988.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__vbc___  ___jea___  __ewl___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000035758	
SUFFIX		
RECON		
DATE BOARDED	20000620	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	19920715	
DISCHARGE AUTHORITY	AR 635-200 C3	
DISCHARGE REASON	144.6800.0000	
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	144.9220.0000	
2.	144.9235.0000	
3.	144.0100.0000	
4.		
5.		
6.