IN THE CASE OF:	  

		BOARD DATE:	  30 September 2008

		DOCKET NUMBER:  AR20080010032 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicants, parents of the deceased former service member (FSM) requests, in effect, that the FSM’s bad conduct discharge (BCD) be upgraded to a general, under honorable conditions discharge, or a medical discharge.  

2.  The applicants state, in effect, that their son was suffering from post traumatic stress disorder (PTSD) and was never treated by the Army.  They also state that their son began using drugs and alcohol as a means of escape.  Their son should have been discharged with a medical discharge following his service in Iraq in 1991.  They further state, in effect, that the father and son began the process to change his discharge in 1994 with the assistance of a Member of Congress.  They had a difficult time obtaining records to support the case.  Their son was killed on 25 June 1995, shortly after that the paperwork came in.  They are now just continuing the claim.  

3.  The applicants also state that the Department of Veteran Affairs (DVA) refused to help their son due to his discharge.  Their son had no insurance, no job, or any means of getting help.  They are not seeking any monetary benefits, they just want their son’s name and character to be cleared so he can rest in peace and their hearts can mend.  

4.  In support of their application, the applicants provide copies of a letter to a Member of Congress (MC) from the FSM and themselves and the MC’s response; a letter to the Secretary of the Army from themselves; a letter from the 
DVA; and the FSM’s General Court-Martial Order; DD Form 214 (Certificate of Release or Discharge from Active Duty), Psychiatric Evaluation, DVA decision, and Death Certificate. 

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 FSM's military records show he enlisted in the Army Delayed Entry Program on 19 October 1989 and enlisted in the Regular Army, in pay grade E-1, on 17 July 1990.  He completed basic and advanced training and was awarded military occupational specialty 11B, Infantryman.  He was advanced to pay grade E-3 on 1 April 1991.

3.  On 15 October 1992, the FSM’s commander initiated a bar to reenlistment against him for substandard personal appearance, possession of narcotics, and arrest by civilian authorities.  The FSM elected not to submit a statement in his own behalf and the bar was approved on 16 October 1992.  

4.  The applicants submitted a copy of a letter to an MC, dated 8 January 1993, wherein they stated, in effect, they wanted an investigation into the FSM not being processed for a medical discharge due to medical and emotional problems.

5.  On 6 January 1993, the FSM was convicted pursuant to his pleas by a general court-martial of one specification of transporting ammunition and possessing two hand grenade simulators in his privately owned vehicle in violation of a lawful general regulation on 15 May 1992; one specification of wrongfully distributing Lysergic Acid Diethylamide (LSD) to an undercover law enforcement agent; and one specification of wrongfully possessing LSD on 30 July 1992.  The applicant was sentenced to reduction to pay grade E-1, total forfeiture of all pay and allowances, to be discharged from the Army with a BCD, 

and confinement for a period of 15 months.  On 9 March 1983, the convening authority, pursuant to a pretrial agreement, approved the sentence except that portion extending to confinement in excess of six months.  The record of trial was forwarded to The Judge Advocate General of the Army for review.

6.  On 10 May 1993, the US Army Court of Military Review affirmed the findings and sentence as approved by the convening authority.

7.  On 5 January 1994, the convening authority ordered the BCD executed.  

8.  The FSM was discharged with a BCD on 25 February 1994, in pay grade E-1, under the provisions of Army Regulation 635-200, Chapter 3, as a Result of Court-Martial.  He was credited with 3 years, 2 months, and 20 days total active service.

9.  The applicants also submitted a copy of a Psychiatric Evaluation, dated 22 August 1994, wherein the FSM, referred by the DVA, underwent a PTSD evaluation.  The examining medical doctor, a psychiatrist, stated that the FSM came with his records from his military career and those records addressed minor difficulties such as rashes, blisters, etc.  The psychiatrist briefed the FSM’s military, developmental, and psychiatric history.  The psychiatrist stated that the FSM showed some evidence of characterological difficulty and carried a long-standing dysthymic disorder which had become major depression in the last one to three years.  The psychiatrist also stated that if the FSM suffered with PTSD of any extent, it probably was derived from childhood.  No doubt his Gulf War experiences were somewhat traumatic, but he certainly did not have a full-fledge wartime PTSD syndrome.  He thought the FSM had sensitized to some of the events that occurred by virtue of a violent childhood.  The FSM’s prognosis was fair due to intelligence and some motivation.

10.  The applicants further submitted a copy of the FSM’s VA Rating Decision, dated February 10, 1995, wherein his claim for service-connected disability compensation for a lung condition; bilateral bicipital tendonitis/bilateral shoulder conditions; aching-popping joints; condition of the left hand; bilateral knee conditions; male pattern baldness (claimed as hair loss); depression, dysthymic, and PSTD; low back condition; bilateral ankle conditions; bilateral hearing loss; bilateral tinnitus; headaches; blurred vision; and alcohol dependence and hallucinogen abuse was denied.  The letter also advised the FSM that his service from 17 July 1990 through 16 July 1992 established basic eligibility for VA benefits and the VA would provide free medical care for any service-connected disability he had which was incurred in or aggravated by that two-year period of 

service.  The FSM was further advised that the condition of his BCD on 25 February 1994 prohibited payment of VA benefits based on his period of service from 17 July 1992 to 25 February 1994.  The FSM was advised of his rights to appeal the decision and applying to the ABCMR.

11.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 3-11 of that regulation provided that a Soldier would 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 sentence affirmed before it could be duly executed.

12.  Army Regulation 635-200, paragraph 3-7b, defines a general discharge as a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for separation specifically allows such characterization.

13.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, United States Code (USC), section 1552, the authority under which this Board acts, the ABCMR is not empowered to change a discharge due to matters which should have been raised in the appellate process, 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 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) according to the provisions of Title 10, USC, Chapter 61 (10 USC 61), and Department of Defense Directive 1332.18.  It sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.  Soldiers are referred into the PDES system when they no longer meet medical retention standards in accordance with Army Regulation 40-501, Chapter 3.  An approved/executed BCD disqualifies a Soldier from receiving any form of disability separation or retired pay.

15.  Title 38, USC, sections 1110 and 1131, permit the DVA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher DVA rating does not establish error or injustice in an Army rating.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.  The DVA, which has neither the authority, nor the responsibility for determining physical fitness for the military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability.  

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicants are not entitled to an upgrade of their late son’s BCD.  They have not shown error, injustice, or inequity for the relief they now request.  

2.  The applicants contend that their son suffered from PTSD and should have been medically separated.  However, the evidence shows that on 15 October 1992, the FSM’s commander initiated a bar to reenlistment against him for reasons to include possession of narcotics and arrest by civilian authorities.  The FSM elected not to submit a statement in his own behalf.  There is no evidence the FSM attempted to make his command aware that he was having problems and needed help.

3.  The evidence of record also shows that the FSM was convicted by a general court-martial for transporting ammunition, possessing two hand grenade simulators in his privately owned vehicle, and wrongfully distributing and possessing LSD.  He was discharged pursuant to the sentence of a general court-martial and was issued a BCD.  From the evidence in this case, it is clear the FSM knew and understood the reasons for his discharge and the type of discharge he would be receiving.  The nature and seriousness of his offenses warranted a general court-martial.  

4.  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 characterized the misconduct for which the FSM was convicted.  The decision to pursue a court-martial is an exercise of the command and is generally a decision made when the seriousness and nature of the offenses are not appropriate for disposition by lesser administrative means.  

5.  The applicants have provided no evidence to show that the FSM’s discharge was unjust at the time of his offenses.  They have not provided evidence sufficient to mitigate the character of the FSM’s discharge.  The FSM’s military 
records and documentation submitted by the applicants contain no matters upon which the ABCMR may grant clemency in the form of an upgrade of the FSM’s BCD to a general, under honorable conditions discharge.  The ABCMR cannot question the decision by the command to pursue a trial; it may only upgrade a discharge as a matter of clemency or equity.

6.  A comprehensive review of the FSM’s official military records and the evidence submitted by the applicants in support of their request, reveal no error or injustice to justify the relief they are requesting to change their late son’s BCD to a medical discharge.  

7.  In view of the foregoing, there is no basis for granting the applicants’ request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x____  ___x____  ____x___  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.



      _________x_____________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080010032



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ABCMR Record of Proceedings (cont)                                         AR20080010032


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