IN THE CASE OF:	

		BOARD DATE:	  26 March 2009

		DOCKET NUMBER:  AR20080017041 


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 reconsideration of the Army Board for Correction of Military Records (ABCMR) denial of his request to remove two DA Forms 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)) from his official military personnel file (OMPF), that his rank to sergeant be restored, that the $1974.00 he forfeited from his pay be refunded, that his     30 September 2005 discharge from the U.S. Army Reserve (USAR) be revoked, and that he be issued an antedated enlistment contract that would allow for him to be medically processed through the Army Physical Disability Evaluation System (PDES).

2.  The applicant states there was no definitive weight given to his testimony or stating of events despite the fact that his medical records were lost between Fort Sam Houston, TX, and Walter Reed Army Medical Center, Washington, DC.  He states that the three non-minority officials that instituted the negative administrative action against him were all directly or indirectly involved in another case of medical negligence.  He states the McWerthy clinic was not capable of treating major injuries or properly diagnosing medical conditions.  He states he was treated there for pain in his lower back and he was given Motrin and sent back to duty.  The applicant states he was injured (lower back) when his first sergeant made him do pushups on a concrete surface.  He states when he fell he injured his back and neck due to the sheer force of the impact as well as breaking the crown of his tooth.

3.  The applicant provides, in support of his application, copies of nine pages from his military personnel record, a DA Form 2173 (Statement of Medical Examination and Duty Status), his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 23 January 2004, a Radiologic Examination Report, one page from his military dental record, and a record of his medical appointments.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20070001779 on 16 October 2007.

2.  In the original findings the ABCMR determined that the DA Form 2627, dated 9 September 2003, was not on file in the applicant's OMPF.  The ABCMR determined there was insufficient evidence to satisfy the clear injustice regulatory standard necessary to support setting aside the nonjudicial punishment (NJP) the applicant received on 12 July 2003.  The ABCMR determined there was an insufficient evidentiary basis to support a recommendation for removal of the DA Form 2627 dated 12 July 2003 from his OMPF or to restore the applicant's rank to sergeant.  The ABCMR determined the medical evidence provided by the applicant and the medical evidence on file gave no indication that the back injury the applicant claimed to have suffered while on active duty disqualified him from retention/separation or supported his separation processing through the PDES prior to his release from active duty or his discharge from the USAR.  The ABCMR determined that absent corroborating evidence of record that supports the assertions made by the applicant or that confirms any impropriety on the part of his active duty or USAR commanders in extending him on active duty, or medical evidence that confirms his medical condition was unfitting for further service, there was insufficient evidentiary basis to support providing an antedated enlistment contract.

3.  The DA Form 2173, the DD Form 214, the Radiologic Examination Report, the page from the applicant's military dental record, and a record of medical appointments are new evidence which require that his case be reconsidered by the ABCMR.

4.  The DA Form 2173, dated 4 June 1990, shows the applicant suffered a separation of his right shoulder, that the disability was temporary, and that the injury was incurred in the line of duty.

5.  The applicant, who held military occupational specialty (MOS) 75B (Unit Personnel Specialist), was ordered to active duty on 16 May 2003 to attend training in MOS 91W (Health Care Specialist).   The DD Form 214 documents the applicant's period of active duty from 16 May 2003 to 23 January 2004 and shows he was released from active duty for training by reason of his completion of the period of active duty for training.  He had completed 8 months and 8 days of active service that was characterized as honorable.

6.  The Radiology Examination Report provided results of a magnetic resonance imaging [MRI] screening of his spine without contrast.  The applicant highlighted the portion showing "L3-4:  Broad-based bulge and facet hypertrophy (excessive development of an organ or part, increase in bulk without multiplication of parts) with mild left neural foramina stenosis" and "L4-5:  Broad-based disk bulge, and focal protrusion into right lateral recess.  Facet hypertrophy and ligamentum flavum (any of a series of ligaments of yellow elastic tissue connecting the laminae of adjacent vertebrae from the axis to the sacrum) hypertrophy with moderate spinal canal."  However, this report provides no evidence the applicant would not be able to perform the duties of his office, grade, rank, or rating.

7.  The page from the applicant's dental record shows that on 31 July 2003 and 15 August 2003 he received treatment for an injured front tooth (#9).  However, there is no evidence the applicant would not be able to perform the duties of his office, grade, rank, or rating.

8.  The record of medical appointments shows past medical appointments for the applicant during the period from 2 June 2003 to 7 October 2003.

9.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice.  Chapter 3 implements and amplifies Article 15, UCMJ, and Part V, Manual for Courts-Martial.  Paragraph 3-28 contains guidance on setting aside punishment and restoring rights, privileges, or property affected by the portion of the punishment set aside.  It states, in pertinent part, that the basis for any set-aside action is a determination that, under all the circumstances of the case, the punishment has resulted in a clear injustice.  "Clear injustice" means that there exists an unwaived legal or factual error that clearly and affirmatively injured the substantial rights of the Soldier.  An example of clear injustice would be the discovery of new evidence unquestionably exculpating the Soldier.  Normally, a Soldier's uncorroborated sworn statement will not constitute a basis to support the setting aside of punishment.

10.  Paragraph 3-43 of the military justice regulation contains guidance on the transfer or removal of records of NJP (i.e., DA Form 2627) from the OMPF.  It states, in pertinent part, applications for removal of an Article 15 from the OMPF based on an error or injustice will be made to the ABCMR.  It further indicates 


that there must be clear and compelling evidence to support the removal of a properly completed, facially valid DA Form 2627 from a Soldier’s record by the ABCMR.

11.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the PDES and 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.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.  Separation by reason of disability requires processing through the PDES.

DISCUSSION AND CONCLUSIONS:

1.  The new evidence provided by the applicant does not satisfy the clear injustice regulatory standard necessary to support setting aside NJP nor does it provide sufficient evidentiary basis to support removing the DA Form 2627, dated 12 July 2003, from his OMPF or to restore his rank to sergeant.

2.  The Radiologic Examination Report shows abnormalities in the applicant's lower back, L3-4 and L4-5.  However, the report does not attribute these abnormalities to a specific injury incurred while the applicant was on active duty.  In addition, there is no indication in this report that these abnormalities would prevent the applicant from performing the duties of his office, grade, rank, or rating.  Therefore, there is insufficient evidence to show the applicant was disqualified for retention/separation or to support his separation processing through the PDES prior to his release from active duty or his discharge from the USAR.

3.  The dental record does not show the applicant's injured front tooth prevented him from performing the duties of his office, grade, rank, or rating.

4.  In view of the above, there is no corroborating evidence of record that supports the assertions made by the applicant or that confirms any impropriety on the part of his active duty or USAR commanders in extending him on active duty, or medical evidence that confirms his medical condition was unfitting for further service.  Therefore, there is no evidentiary basis for revoking the applicant's USAR discharge and issuing him an antedated enlistment contract to allow for him to be processed through the PDES.

5.  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 that 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 to amend the decision of the ABCMR set forth in Docket Number AR20070001779, dated 16 October 2007.



      ____________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)                                         AR20080017041





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ABCMR Record of Proceedings (cont)                                         AR20080017041



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