RECORD OF PROCEEDINGS


	IN THE CASE OF:


	BOARD DATE:	  8 April 2008
	DOCKET NUMBER:  AR20070014201 


	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.


Ms. Catherine C. Mitrano

Director

Mr. Michael L. Engle

Analyst

The following members, a quorum, were present:


Ms. Linda D. Simmons

Chairperson

Mr. David K. Haasenritter

Member

Mr. Edward E. Montgomery

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 upgraded to honorable.

2.  The applicant states, in effect, that if he had competent counsel and a full, adequate hearing, the outcome would have been different.  He also states that the punishment and discharge were excessive.

3.  The applicant provides no supporting documentation, although he states that he will forward his service records.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  On 23 October 1984, the applicant enlisted in the Regular Army for 3 years.  He was assigned to the United States Army Training Center, Fort Dix, New Jersey, for basic combat training.  There is no evidence showing that he completed this training.

3.  On 28 November 1984, the applicant was medically diagnosed with an injury to his right knee that occurred 3 days earlier during a game of football.  He was given a temporary physical profile limiting his activities to no crawling, stooping, running, jumping, prolonged standing or marching more than 15 minutes.

4.  On 6 December 1984, the applicant underwent surgery to remove torn cartilage from his knee.  The applicant was counseled regarding reconstruction of his knee, informing him that this procedure does not render the knee 100 percent normal and in many cases fails several years later.  The applicant declined reconstructive surgery, opting instead to do vigorous physical therapy.  The applicant also was informed and understood that his condition with or without the reconstructive surgery rendered him unfit for further military duty.

5.  On 19 March 1985, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for unlawful assault, being disorderly, failure to go to his place of duty, and for willful and wrongful removal of ignition wires from a privately owned vehicle.   The punishment included a forfeiture of $162.00 pay per month for 1 month and 
14 days restriction and extra duty.

6.  On 6 May 1985, a Medical Evaluation Board (MEB) convened and found the applicant suffered from an anterolateral rotary instability of his right knee.  The MEB further found that his medical condition occurred while entitled to basic pay and was in the line of duty.  The MEB referred the applicant to a Physical Evaluation Board (PEB).

7.  On 4 June 1985, the PEB convened and found the applicant to be physically unfit for service and recommended a combined physical disability rating of 30 percent. 

8.  On 27 June 1985, the United States Army Physical Disability Agency (USAPDA) returned the PEB proceedings and inquired as to why the applicant refused to accept corrective surgery.  

9.  On or about 1 August 1985, the applicant again refused to accept the surgery. On or about 12 August 1985, the PEB upheld its original findings and resubmitted the proceedings to the USAPDA.

10.  Orders D 171-23, United States Army Military Personnel Center, dated 
9 September 1985, placed the applicant on the Temporary Disability Retired List (TDRL).

11.  On 9 September 1985, the Commander, United States Army Medical Command, Fort Dix, New Jersey, informed the United States Army Military Personnel Center that the applicant was the subject of disciplinary action that might result in a punitive discharge.  Accordingly, the applicant's TDRL orders were revoked. 

12.  On 1 October 1985, charges were preferred under the UCMJ for violation of Article 112a, wrongful manufacture (one specification), wrongful use (two specifications), and wrongful distribution (two specifications) of methamphetamine. 
13.  On 13 November 1985, the applicant offered to plead guilty to the charge and all specifications, provided the convening authority would not approve a sentence in excess of a bad conduct discharge, confinement for 5 months, forfeiture of $463.00 pay per month for 5 months, and reduction to the lowest enlisted pay grade of E-1.  The convening authority accepted the applicant's plea offer.

14.  On 14 November 1985, a Special Court-Martial was convened.  The applicant offered a plea of guilty to the charge and all specifications in return for a more lenient sentence pursuant to the terms of a pretrial agreement.  

15.  The military judge accepted the applicant's pleas and found him guilty of the charge and all specifications.  He sentenced the applicant to a forfeiture of $300.00 pay per month for 3 months, confinement for 1 month, and a bad conduct discharge. 

16.  On 3 January 1986, the Staff Judge Advocate, in a written review for the convening authority, summarized the specifications, pleas, and sentence.  He further stated that there was no pretrial confinement, but that there was a plea agreement.  The Staff Judge Advocate also stated that the sentence was equal to or less severe in all respects than the terms of the pretrial agreement.  Therefore, he recommended that the findings of guilty and sentence be approved. 

17.  On 8 January 1986, the convening authority approved the sentence as adjudged, which was forfeiture of $300.00 pay per month for 3 months, confinement for 1 month, and a bad conduct discharge. 

18.  On 30 April 1986, the United States Army Court of Military Review (ACMR) examined the case.   The applicant contended that the court-martial was without jurisdiction and its judgment was therefore void.  The Government argued that the error in question was administrative, did not affect the court-martial's jurisdiction, and therefore the applicant's contention was without merit.  Accordingly, it argued that the findings and sentence as approved, were appropriate and should be affirmed.  On consideration of the entire record, the ACMR affirmed the findings of guilty and sentence.






19.  The applicant's Certificate of Release or Discharge from Active Duty 
(DD Form 214) shows that he was discharged on 29 October 1986 under the provisions of Army Regulation 635-200, chapter 3.  He received a bad conduct characterization of service.

DISCUSSION AND CONCLUSIONS:

1.  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 final discharge appropriately characterizes the misconduct for which the applicant was convicted.

2.  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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

  _ LDS __  __DKH__  __EEM __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.





_     Linda D. Simmons ____
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.