IN THE CASE OF:	  

		BOARD DATE:	  28 October 2008

		DOCKET NUMBER:  AR20080010495 


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 applicant requests, in effect, that his bad conduct discharge (BCD) be changed to a medical discharge.

2.  The applicant states, in effect, that he should have received a medical discharge because he had a broken neck and back injuries.  He was promised a U3 Code G for permanent disability.   

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) in support of his request.

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's record shows he was inducted on 23 August 1967.  He was trained as a Light Weapons Infantryman, in military occupational specialty (MOS), 11B.  He was promoted to pay grade E-2, effective 23 December 1967. 

3.  The applicant was convicted by a special court-martial on 14 August 1968 of being absent without leave (AWOL) from 8 January 1968 to 5 March 1968, from 7 April 1968 to 30 May 1968, from 12 June 1968 to 21 June 1968, and from 15 July 1968 to 26 July 1968.  His sentence consisted of confinement at hard labor for 3 months (suspended) and a reduction to the pay grade of E-1.  His sentence was approved on 21 August 1968.

4.  The applicant was convicted by a special court-martial on 11 September 1969 of being AWOL from 9 September 1968 to 19 December 1968 and from 14 January 1969 to 26 April 1969.  His sentence consisted of a BCD, confinement at hard labor for 6 months, and a forfeiture of $80.00 per month for 6 months.  His sentence was approved on 13 November 1969.  Only so much of the sentence as provided for a forfeiture of $55.00 pay per month for 6 months, confinement at hard labor for 6 months, and a BCD was approved.  

5.  The record of trial was forwarded to The Judge Advocate General of the Army for review by the Court of Military Review.  Pending completion of the review, the applicant was confined in the Post Stockade, Fort Lewis, Washington.

6.  On 30 January 1970, the United States Army Court of Military Review affirmed the findings and sentence.

7.  On 9 February 1970, the US Court of Military Appeals denied the applicant's petition for review.

8.  The applicant underwent a separation medical examination on 12 February 1970, and was found qualified for separation.  At that time, the applicant’s self- reported medical history was that neither a history of broken bones nor any back problems existed.

9.  On 20 February 1970, the applicant was discharged from the Army pursuant to the sentence of a special court-martial and was issued a BCD.  He had served 8 months and 3 days of creditable service and had 659 days of time lost due to AWOL and confinement.




10.  Army Regulation 635-204, in effect, at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 1(b) of the regulation provided, in pertinent part, that an enlisted person 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 affirmed sentences ordered duty executed.

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 regulation.

2.  The evidence of record shows that the applicant was convicted by two special courts-martial for AWOL.  He was discharged pursuant to the sentence of a special court-martial and was issued a BCD.  

3.  The applicant underwent a separation physical examination in conjunction with his discharge process.  The applicant claims that he had a broken neck and back injuries; however, this was not validated by the evidence of record or proper medical authorities.  There is no evidence, and he has provided none, to show that he had a broken neck and back injuries or to show that he was promised a U3 Code G for permanent disability in conjunction with his discharge.  He was found qualified for separation with an 111111 physical profile.

4.  There is no evidence to show that he was recommended for appearance before a Medical Evaluation Board (MEB) or any form of physical disability processing prior to his discharge.  Even if he had, the BCD would have taken precedence over the medical review.

5.  The applicant has provided insufficient evidence to show that his discharge was unjust and that he should have been medically discharged.  He also has not provided evidence sufficient to mitigate the character of his discharge.

6.  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 failed to submit evidence that would satisfy this requirement.





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)                                         AR20080010495



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ABCMR Record of Proceedings (cont)                                         AR20080010495



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