RECORD OF PROCEEDINGS


	IN THE CASE OF:  
	 

	BOARD DATE:           25 August 2005     
	DOCKET NUMBER:  AR20050001846


	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

Mrs. Nancy L. Amos

Analyst

The following members, a quorum, were present:


Ms. Margaret K. Patterson

Chairperson

Mr. Ronald E. Blakely

Member

Ms. Linda M. Barker

Member

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests that his bad conduct discharge be changed to a medical retirement.  

2.  The applicant states he is 100 percent service-connected for medical conditions from Vietnam.  Plus, the company commander did not follow the commanding general's orders.  Plus, he should have been given a medical examination before he was finally discharged.

3.  The applicant provides a copy of his military identification card with an expiration date of 2 September 1990; a copy of his two Bronze Star Medal orders, one for heroism; a copy of two Army Good Conduct Medal orders; a        6 August 1993 letter from a Soldier who was wounded at the same time the applicant was; a 5 March 1991 letter from the U. S. Army Reserve Personnel Center indicating the applicant was awarded two Purple Hearts; his two Purple Heart orders with certificates; a message from the Office of The Judge Advocate General date time group 181000Z July 1984, Subject:  Execution of Forfeitures under the Military Justice Act of 1983; five documents pertaining to his court-martial; an Authorization to Release Confidential Information to his Congressman dated 7 July 2003; a 25 July 2003 letter from the Army Review Boards Agency, Support Division, St. Louis; a 29 October 1999 letter from the Department of Veterans Affairs (DVA) stating their records reflect he served honorably and had been rated 100 percent permanently and totally disabled due to a service-connected disability; and a 30 March 2000 DVA notice of increased compensation.

4.  Also provided is a 1 July 2005 letter from the Chief, Combat Related Special Compensation Division, U. S. Army Physical Disability Agency.  The following additional documents were provided with this letter:  the applicant's DD Form  214 (Certificate of Release or Discharge from Active Duty); an undated, unaddressed (but apparently sent or meant for the DVA) letter from the applicant; a 10 May 1999 affidavit from the applicant; a 10 March 2003 letter from the DVA containing essentially the same information as their 29 October 1999 letter; his separation orders; a copy of two additional Army Good Conduct Medal orders; and a DVA Compensation and Pay Master Record Rating Date printout.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 31 May 1990.  The application submitted in this case is dated            20 January 2005. 
2.  Title 10, U.S. Code, Section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant was inducted into the Army on 25 June 1969.  He completed basic combat training and advanced individual training and was awarded military occupational specialty 11B (Light Weapons Infantryman).  He completed basic airborne training.  He served in Vietnam from December 1970 to December 1971 where he was wounded twice.  His awards included the Bronze Star Medal for heroism.

4.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows he continued to serve as an infantryman through June 1980 during assignments at Fort Bragg, NC (where he was assigned to an airborne unit) and Germany.  He was reassigned to Fort Benning, GA in June 1980 where he performed duties as an 11B3P airborne instructor.

5.  A DA Form 705 (Army Physical Readiness Test Scorecard) shows the applicant passed the Army Physical Readiness Test (APRT) on 20 July 1982 with a score of 268 (out of a maximum of 300).  

6.  On 6 August 1982, the applicant volunteered for Drill Sergeant Duty.  His command recommended disapproval of his request due to his financial difficulties even though he had demonstrated leadership ability in his present position.

7.  The applicant's earliest available Enlisted Evaluation Report (EER), for the period November 1981 through October 1982, shows he performed his duties as an instructor admirably.  However, due to his obese appearance, his being overweight, and letters of indebtedness, he was relieved from his duties as an airborne instructor. 

8.  The applicant's DA Form 2-1 indicates he was reassigned to duties as an out-processing noncommissioned officer.  His EER for the period November 1982 through October 1983 shows he discharged all his responsibilities in an outstanding manner.  

9.  On 19 October 1984, the applicant was convicted, contrary to his pleas, by a general court-martial of three specifications of graft (between 15 September 1983 and 15 November 1983, trainees paid him $200.00 in exchange for favors such as not charging them for extra leave time).  His approved sentence was a bad conduct discharge, forfeiture of all pay and allowances, and a reduction to pay grade E-1.  He was placed on involuntary excess leave effective 20 December 1984.

10.  On 4 June 1985, the Army Court of Military Review (CMR) affirmed the findings and the sentence.  However, the Court of Military Appeals granted the applicant's petition for further review and, on 24 October 1988, set aside the decision of the CMR and remanded the case to that court to decide whether the erroneous introduction of evidence concerning the applicant's indebtedness prejudiced his case.  On 6 October 1989, the CMR found the error was not prejudicial and reaffirmed the findings and the sentence.  On 16 January 1990, the Court of Military Appeals affirmed the CMR's decision.

11.  On 31 May 1990, the applicant was discharged, with a bad conduct discharge, pursuant to his conviction by court-martial.  His DD Form 214 shows he completed a total of 20 years, 11 months, and 6 days of active service.  His DD Form 214 also shows he was on excess leave from 20 December 1984 through 15 February 1988, which period was creditable for all purposes except pay and allowances.

12.  In his undated, unaddressed letter (but apparently directed to the DVA), the applicant indicated:  He was wounded in Vietnam; a "back condition noted page one Feb. 19, 1971; Nov. 29, 1971, April 8, 1971, Jan. 10, 1972"; he was involved in an automobile accident in 1982 on the job; and he was involved in an automobile accident on 8 August 1989.  He also indicated that something else occurred on 11 November 1989.

13.  The ABCMR, in Docket Number AC94-08044 dated 1 March 1995, considered and denied the applicant's request to upgrade his discharge             to honorable and allow him to retire.  The ABCMR, in Docket Number      AR199923493 dated 9 December 1999, reconsidered and denied his request   to upgrade his discharge and allow him to retire.

14.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.  In pertinent part, it states that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  Paragraph 4-2 states that a Soldier may not be referred for, or continue, disability processing if under sentence of dismissal or punitive discharge.  

15.  Army Regulation 40-501 (Standards of Medical Fitness), in effect at the time, Table 8-3 stated, in effect, a separation medical examination was not required for enlisted Soldiers being processed for separation under the provisions of chapter 3, Army Regulation 635-200 (chapter 3, section IV – Dishonorable and Bad Conduct Discharge).

16.  The National Defense Authorization Act for Fiscal Year 2003 granted a special payment to certain disabled retirees - Combat Related Special Compensation (CRSC).  CRSC is payable to certain disabled retirees who have at least 20 years of active duty or a combination of active duty and Reserve points equaling 20 years of full-time active duty.  Those retired for disability must still have completed at least 20 years of service in order to meet the length-of-service requirements.  Compensation is paid for combat-related disabilities, i.e., those incurred in combat, in a training exercise, or in the performance of hazardous duty.

17.  Title 10, U. S. Code, section 1552(f), prohibits the ABCMR from correcting records of courts-martial and administrative records pertaining to court-martial records tried or reviewed under the Uniform Code of Military Justice, except for corrections directed by reviewing authorities or clemency on the sentence.

DISCUSSION AND CONCLUSIONS:

1.  It is acknowledged the applicant was wounded twice while in Vietnam.  However, there is no evidence of record to show residuals from those injuries ever rendered him physically incapable of performing his duties.  He continued to perform duties in infantry airborne units until his reassignment to Fort Benning in June 1980.  From June 1980 to around November 1982 the evidence of record shows he successfully performed his duties as an infantry airborne instructor.  He passed the APRT in July 1982.  He considered himself fit enough to volunteer for drill sergeant duty, a physically-demanding job, in August 1982.  He was relieved from his duties as an infantry airborne instructor only because of his obese appearance, being overweight, and letters of indebtedness.

2.  It cannot be determined what the applicant means when he states "Plus, the company commander did not follow the Commanding General's orders."  In any case, his trial by court-martial was warranted by the gravity of the offenses charged.  His sentence included a punitive discharge.  His sentence to a bad conduct discharge was affirmed by the CMR.  

3.  It is acknowledged the Court of Military Appeals, on 24 October 1988 (3 years after the CMR affirmed his sentence), set aside the decision of the CMR and remanded the case to that court to decide whether the erroneous introduction of evidence concerning the applicant's indebtedness prejudiced his case.  However, on 6 October 1989 the CMR found the error was not prejudicial and reaffirmed the findings and the sentence.  The applicant provides no evidence to show he was not notified of these court decisions or not adequately represented by counsel during the court actions.  

4.  Because of his sentence to a punitive discharge, the applicant was not eligible for referral to the disability processing system for any past disabilities he may have incurred (and there is no evidence to show any disabilities rendered him incapable of performing his duties) or for any disabilities he may have incurred subsequent to his conviction by court-martial and prior to his May 1990 discharge.

5.  The regulation did not require the applicant be given a medical separation examination.

6.  Since the ABCMR previously denied the applicant's requests to upgrade his discharge and allow him a length of service retirement, and he presents no evidence now to show that such relief should be granted, he is not eligible for CRSC.

7.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 31 May 1990; therefore, the time for the applicant to file a request for correction of any error or injustice expired on         30 May 1993.  The applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__mkp___  __reb___  __lmb___  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.




		_Margaret K. Patterson
		        CHAIRPERSON





INDEX

CASE ID
AR20050001846
SUFFIX

RECON

DATE BOARDED
20050825
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Chun
ISSUES         1.
108.00
2.

3.

4.

5.

6.