MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:           26 March 2002
	DOCKET NUMBER:   AR2001063710

	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. Carl W. S. Chun		Director	
	Mrs. Carolyn G. Wade		Analyst	

  The following members, a quorum, were present:

	Mr. George D. Paxson		Chairperson	
	Ms. Deborah S. Jacobs		Member	
	Mr. Ronald E. Blakely		Member	

	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:  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

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

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.