IN THE CASE OF:	  

		BOARD DATE:	        23 DECEMBER 2008

		DOCKET NUMBER:  AR20080013438 


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 be upgraded to an honorable or general discharge. 

2.  The applicant states that his bad conduct discharge was unjust because his medical condition was not taken into consideration during his court-martial.  He also states, in effect, that since being treated for cancer while on active duty and 3 years of remission, his cancer has come back, and that he is unable to maintain any insurance or work.  He further states that he is receiving limited medical care, and is unable to receive a pension from the government.  He continued by stating that over the past couple of years, he has had time to reflect on his life, and wishes that he could turn back the hands of time, but since he cannot, he is striving to make the days of his life count.  He also states that he recently moved to Georgia, has gotten married, and had three children.  Additionally, he states that he is a member of the Last Chance Holiness Church where he resides as a deacon, and that he has taken all the necessary steps to turn his life around.  Further, he hopes that the life of his past will not dictate the decision of the Army Board for Correction of Military Records (ABCMR) and states that he is requesting an upgrade of his discharge so that he can get proper medical care.

3.  The applicant provides a Table of Contents page; a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 2 August 2008; orders, dated 21 April 2004; his DD Form 214 (Certificate of Release or Discharge from Active Duty) from his discharge on 5 May 2004; a 
letter, dated 19 October 2005, from the Department of Veterans Affairs (DVA); an undated self-authored letter; third-party letters of support from his current wife, mother, and an unknown male relative; a third-party letter, dated 28 July 2008, from the applicant's employer; orders, dated 15 August 1999, which awarded him the basic Parachutist Badge; orders, dated 22 September 1999, which awarded him the Good Conduct Medal; orders, dated 15 August 2000, which promoted him to sergeant/E-5; a DA Form 1059 (Service School Academic Evaluation Report), dated 7 September 2000; a DA Form 2166-7 (NCO Evaluation Report) for the period September 2000 through August 2001; a completion certificate, dated 14 March 2003, which shows that he completed a sex offender education class; a Treatment Summary for Parole/Clemency Consideration, dated 
17 March 2003; 591 pages of DVA medical documents which were printed at the Atlanta, Georgia DVA Medical Center on 24 July 2008; 78 pages of progress notes which were printed at the Nashville, Tennessee DVA Medical Center on 
5 August 2008; four Standard Forms 600 (Chronological Record of Medical Care), showing laboratory results from 18 April 2002, 2 May 2002, and 27 June 2002, as well as a meeting in September 2002; three chemotherapy administration notes, initially dated 18 April 2002, 2 May 2002, and 27 June 2002; five automated versions of a DA Form 5008 (Telephone Consultation), which were printed on 10 April 2002, 23 April 2002, 4 June 2002, 6 June 2002, and 1 July 2002; seven pages of radiologic examination reports from examinations on 21 February 2002 and 11 September 2002; eight automated versions of a Standard Form 600, which were printed on 11 March 2002,
13 March 2002, 10 April 2002, 24 April 2002, 30 May 2002, two on 2 July 2002, and 8 August 2002; a Standard Form 525 (Radiation Therapy Summary) showing that he completed radiation therapy on 15 October 2002; radiation therapy clinical notes from examinations on 10 March 2003 and 9 December 2003; two automated versions of a Standard Form 600 from examinations on
10 December 2002 and 15 April 2003; a document showing that he had radiation therapy appointments on 10 June 2003 and 9 December 2003; a Consent for Performance of Treatment, Procedure, Anesthesia and/or Blood Products, dated 13 September 2002; a letter, dated 8 September 2008, from a physician at the DVA Medical Center (Atlanta), with seven attachments totaling 24 pages, most of which is duplicate material; an undated DD Form 2766 (Adult Preventive and Chronic Care Flowsheet); and a two-page Specialty Care Consult document in support of this application.

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 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 military records show that he enlisted in the Regular Army on 31 July 1996.  He completed initial entry training and was awarded military occupational specialty (MOS) 13B (Cannon Crewmember).  He served in Korea after initial entry training, and progressed in rank and pay grade from private (PV2)/E-2 to sergeant (SGT)/E-5.  His last regular permanent duty station was Fort Bragg, North Carolina.

3.  On 21 August 2002, the applicant was convicted by a general court-martial of committing carnal knowledge with a female child over 12 years of age on or about 14 March 2002 and committing adultery with the same female child on or about 14 March 2002.  He was sentenced to confinement for 3 years, reduction in rank and pay grade to private (PV1)/E-1, and a bad conduct discharge.  However, only so much of the applicant's sentence as provided for a bad conduct discharge, confinement for 24 months, and reduction in rank and pay grade to PV1 was approved and, except for the part of his sentence that extended to a bad conduct discharge, was ordered to be executed.  The automatic forfeiture of pay and allowances required by Article 57(a) of the Uniform Code of Military Justice (UCMJ) was deferred on 4 September 2002 until 24 October 2002, and a waiver of the automatic forfeiture of pay pursuant to Article 58b of the UCMJ was granted on 4 September 2002 until 4 January 2003 with the understanding that the monies be directed to the applicant's spouse at the time.  The applicant was placed in confinement on 21 August 2002.  

4.  On 26 February 2003, the action taken in the applicant's court-marital was set aside by the United States Army Court of Criminal Appeals pursuant to Article 66 of the UCMJ, and a new post-trial recommendation and action was directed.  A recommendation having been received pursuant to Rules for Court Martial (R.C.M.) 1106, the court-martial convening authority directed that only so much of the applicant's sentence as provided for a bad conduct discharge, confinement for 24 months, and reduction in rank to private/E-1 was approved and, except for the bad conduct discharge, was ordered to be executed.  The automatic forfeiture of pay and allowances required by Article 58b of the UCMJ was deferred effective 4 September 2002 until 24 October 2002.  A waiver of the automatic forfeiture of pay and allowances pursuant to Article 58b of the UCMJ 
was granted on 4 September 2002 until 4 January 2003, and an additional waiver was authorized and granted for a period of three and a half months, from 5 June 2003 until 19 September 2003, for the support of the applicant's qualifying dependents.  

5.  Headquarters, United States Army Field Artillery Center, Fort Sill, Oklahoma, General Court-Martial Order Number 20, dated 5 February 2004, shows that the applicant's sentence to reduction to PV1, confinement for 24 months, and a bad conduct discharge had been affirmed.  The automatic forfeiture of pay and allowances required by Article 58b of the UCMJ was deferred effective
4 September 2002 until 24 October 2002.  This court-martial order also shows that pursuant to Article 66, UCMJ, the automatic forfeiture of all pay and allowances was waived from 25 October 2002 until 4 January 2003, and from
5 June 2003 until 19 September 2003.  This order further stated that as Article 71(c) had been complied with, the applicant's bad conduct discharge would be duly executed.

6.  On 5 May 2004, the applicant was discharged pursuant to a duly reviewed and affirmed court-martial order.  Item 24 (Character of Service) of his DD Form 214 shows that he received a bad conduct discharge.  Item 28 (Narrative Reason for Separation) of this same document has an entry of "Court-Martial, Other."  

7.  Title 10, U.S. Code, section 1552, as amended does not permit any redress by this Board which would disturb the finality of a court-martial conviction.  The Board is empowered to address the punishment and/or the characterization of service resulting from a court-martial conviction.  The Board may elect to change the punishment and/or the characterization of service 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.

8.  Army Regulation 635-200 governs the separation of enlisted personnel.  Paragraph 3-7a provides, in pertinent part, that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

9.  Army Regulation 635-200, paragraph 3-7b, further provides, in pertinent part, that a general discharge is 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 the Soldier’s separation specifically allows such characterization.

10.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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.  This regulation has consistently provided that Soldiers may not be referred for, or continue, disability processing when they are charged with an offense under the Uniform Code of Military Justice (UCMJ) or under investigation for an offense chargeable under the UCMJ which could result in dismissal or a punitive discharge.

11.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his bad conduct discharge should be upgraded to an honorable or general discharge. 

2.  The applicant's contention that his bad conduct discharge was unjust because his medical condition was not taken into consideration during his court-martial was noted.  However, a court-martial is not bound to grant clemency merely because a member is undergoing medical treatment for cancer.  While it is unfortunate that the applicant is undergoing treatment for cancer, it is not relevant to the type of discharge he was given.

3.  The third-party letters provided by the applicant which attest to his post-service conduct and employment were also considered.  However, good post-service conduct alone is not a basis for upgrading a discharge.  

4.  The applicant’s entire record of service was considered; however, the fact that the applicant was tried and convicted by a general court-martial for committing carnal knowledge with a female child over 12 years of age and committing adultery with the same female child clearly shows that the applicant did not meet the standards of acceptable conduct and performance of duty for Army personnel.  The evidence of record shows that the applicant was discharged 
pursuant to a duly reviewed and affirmed general court-martial order, and there is no record or documentary evidence of acts of valor, achievement, or service that would warrant special recognition.  

5.  After a thorough review of the available records, there was no cause for clemency and an insufficient basis upon which to base an upgrade of the applicant’s bad conduct discharge to an honorable or general discharge.  In view of the foregoing, there is no basis for upgrading the applicant's discharge.  Additionally, although he did not specifically request that his discharge be changed to a medical discharge, there is also no basis for upgrading his discharge to a medical discharge.   

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.



      ________XXX______________
               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)                                         AR20080013438



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ABCMR Record of Proceedings (cont)                                         AR20080013438



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