RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  10 April 2008
	DOCKET NUMBER:  AR20080000775 


	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.




Director



Analyst
      The following members, a quorum, were present:




Chairperson



Member



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, in effect, a medical discharge. 

2.  The applicant states, in effect, that at the time of his discharge he was not treated for migraine headaches, nose bleeds, and disorientation as a result of cancer.  He contends that he should have been medically discharged.

3.  The applicant provides medical records, dated December 1984 and January 1985.

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.  The applicant enlisted on 28 January 1981 and trained as a food service specialist.    

3.  On 6 February 1982, nonjudicial punishment was imposed against the applicant for at least two specifications of failing to go at the prescribed time to his appointed place of duty.  The continuation sheet to the DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) is not available.  His punishment consisted of a reduction to E-4 (suspended), a forfeiture of pay, restriction, and extra duty.  On 19 February 1982, the suspended portion was vacated.   

4.  On 19 April 1982, contrary to his plea, the applicant was convicted by a summary court-martial of violating a lawful general regulation.  He was sentenced to be restricted to the limits of the Camp Hovey (Korea) and Casey area for 30 days.  On 22 April 1982, the convening authority approved the sentence.  


5.  On 19 July 1982, nonjudicial punishment was imposed against the applicant for being absent without leave (AWOL) from 5 July 1982 to 16 July 1982.  His punishment consisted of a reduction to E-3 and a forfeiture of pay.  

6.  On 17 September 1982, nonjudicial punishment was imposed against the applicant for being AWOL from 3 September 1982 to 14 September 1982.  His punishment consisted of a reduction to E-2, a forfeiture of pay, and correctional custody for 30 days.  

7.  On 1 June 1983, in accordance with his pleas, the applicant was convicted by a general court-martial of being AWOL from 24 September 1982 to 16 April 1983, escaping from custody, and larceny.  He was sentenced to be reduced to E-1, to forfeit all pay and allowances, to be confined for 12 months, and to be discharged from the service with a bad conduct discharge.  On 23 June 1983, the convening authority approved the sentence.

8.  On 2 November 1983, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.

9.  On 13 February 1984, the applicant elected not to have a medical examination.  On 13 February 1984, his medical records were reviewed by competent medical authorities and it was determined that a medical examination for separation was not required.  

10.  On 11 May 1984, the convening authority ordered the bad conduct discharge to be executed.

11.  Accordingly, the applicant was discharged with a bad conduct discharge on 
22 May 1984 under the provisions of Army Regulation 635-200, chapter 
3, as a result of a court-martial.  He had served a total of 4 years, 6 months, and 15 days of creditable active service with 518 days of lost time due to AWOL and confinement.  

12.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Chapter 3 of this regulation states 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. 

13.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, United States Code, section 1552, the authority under which this Board acts, the Army Board for Correction of Military Records is not empowered to set aside a conviction.  Rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate.  Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed.

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.  Paragraph 4-1 states that a Soldier charged with an offense under the UCMJ or who is under investigation for an offense chargeable under the UCMJ which could result in dismissal or punitive discharge may not be referred for, or continue, disability processing.   

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

2.  Since the applicant was charged with offenses under the UCMJ and he received a bad conduct discharge (i.e. a punitive discharge), it does not appear he was eligible for physical disability processing.  Therefore, there is no basis for granting a medical discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

JM_____  _CD_____  __QS____  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.


      ___             JM_______
                CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20080000775


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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508