IN THE CASE OF:	  

		BOARD DATE:	  9 June 2009

		DOCKET NUMBER:  AR20090001811 


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 her previous application for an upgrade of her under other than honorable conditions discharge so that she may be eligible for medical benefits.

2.  The applicant states, in effect, that:

	a.  she was selectively punished harsher than others who committed worse offenses and they were allowed to continue to serve;

	b.  her dismissal was excessive punishment; 

	c.  her grave physical, emotional, and mental condition were ignored.  At the time of her formal physical evaluation board (PEB) she qualified for a 100 percent medical retirement.  She was also administered drugs that she was having difficulty with; 

	d.  she had completed more than 20 years of good service and her case was ideal for a Secretarial Authority to substitute her under other than honorable conditions discharge with a general discharge;

	e.  her defense counsel was weak and ineffective;

	f.  one of the (two) charges was dropped; yet, her punishment did not decrease; and

	g.  she continues to suffer with financial problems.

3.  The applicant provides an undated financial standing statement and a copy of a civilian medical report, dated 26 February 2009, in support of her request.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests reconsideration of the applicant’s earlier request for an upgrade of her discharge.

2.  Counsel states the applicant was dismissed by a sentence of a General Court-Martial for taking several small items from the Post Exchange (PX).  At the time, she was about to be separated from the Army with a medical discharge through the PEB process.  Today, she has fallen upon extremely serious hard times.  Considering her many years of good service to the Army, counsel asks for a compassionate consideration of her case. 

3.  Counsel did not provide any additional documentary evidence in support of the applicant’s request.  

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 AR20070001496, dated 15 January 2008.  On 22 January 2008, the ABCMR informed the applicant that the decision in her case was final and that she may request reconsideration of the decision within one year if she could present new evidence or argument that was not previously considered by the Board.  The applicant submitted a request for reconsideration, on 20 January 2009, which was within one year of the ABCMR letter dated 22 January 2008, therefore, based on this confusion, as an exception to policy, the ABCMR will reconsider the applicant's new evidence and/or arguments.

2.  The applicant submitted an undated financial standing statement and a copy of a civilian medical report, dated 26 February 2009, which were not previously reviewed by the ABCMR; therefore, they are considered new evidence and as such warrant consideration by the Board.

3.  With prior enlisted service, the applicant's records show she was appointed as a second lieutenant in the Army Nurse Corps (ANC) of the U.S. Army Reserve and executed an oath of office on 5 May 1981.  She was assigned to the 306th Field Hospital, Memphis, TN, and was promoted to first lieutenant (1LT) on 22 December 1983 and captain on 27 November 1989.

4.  On 15 October 1991, the applicant was ordered to active duty as an obligated volunteer officer for a period of 3 years to fulfill her active duty requirements.  She was assigned to Tripler Army Medical Center, Hawaii. 

5.  On 3 August 1994, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for three instances of stealing property of a value of approximately $28.00, $10.00, and $3.25 from the Navy Exchange on or about 26 June 1994.  Her punishment consisted of a forfeiture of $100.00 per month for two months.

6.  On 6 June 1997, by memorandum, the U.S. Army PEB, Walter Reed Army Medical Center, Washington, DC, notified the applicant that her formal PEB hearing was scheduled for 30 July 1997.  The PEB findings are not available for review with this case.

7.  On 21 June 1997, by memorandum, the U.S. Total Army Personnel Command (now known as the U.S. Army Human Resources Command), Alexandria, VA, notified the applicant that she was not selected for promotion to major and that she would be released from active duty on 1 December 1997.

8.  The applicant's medical records are not available for review with this case.  However, on 21 July 1997, by memorandum, an Internal Medicine Medical Corps (MC) major stated the applicant was diagnosed with fibromyalgia which he defined as a disorder which caused pain to the muscles and joints.  He also stated that he referred the applicant to the medical review board because she could no longer work productively in the Army due to her medical condition.  

9.  On 21 July 1997, also by memorandum, a MC lieutenant colonel (LTC), an ear, nose, and throat specialist, stated that he had been treating the applicant since February 1997 for vertigo.  He further stated that vertigo is a sub-problem of fibromyalgia which is a painful connective tissue disorder.  He further diagnosed the applicant with temporal mandibular joint (TMJ) disorder.  The MC LTC concluded that the applicant's condition was chronic and her overall functioning had decreased.  

10.  On 13 June 1997, the applicant pled guilty at a General Court-Martial to one specification of larceny of Army and Air Force Exchange Service (AAFES) property of some value of $100.00 on 24 January 1997 and one specification of conduct unbecoming an officer on the same date.  The court sentenced her to dismissal from the Army.  Her sentence was adjudged on 13 June 1997.
11.  On 8 August 1997, the convening authority approved the sentence and except for the dismissal, ordered it executed.

12.  On 19 October 2001, the U.S. Army Court of Criminal Appeals set aside and dismissed the findings of guilty of the charge and specification of conduct unbecoming an officer; however, the remaining findings of guilty and the sentence were affirmed.

13.  On 24 April 2002, the U.S. Court of Appeals for the Armed Forces affirmed the decision of the U.S. Army Court of Criminal Appeals.

14.  On 9 October 2002, the Assistant Secretary of the Army (Manpower and Reserve Affairs) approved the sentence and ordered it executed.  The applicant ceased to be an officer of the U.S. Army at midnight on 25 October 2002.

15.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) she was issued shows she was discharged as a result of court-martial on 25 October 2002, under the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges) with a character of service of under other than honorable conditions.

16.  In her undated financial standing statement, the applicant provides a breakdown of her expenses and states that her finances are consumed by unpaid medical expenses.

17.  The applicant submitted a copy of a civilian medical report, dated 26 February 2009, in which her doctor states that he reviewed the applicant's medical record from 1992 to the present and determined that she had various medical conditions during her military service, including tendon strain and neuritis, left sided sciatica, hallux rigidus, back pain, degenerative disc disease, bulging disc at L4-L5, fibromyalgia, depression, vertigo, and other medical conditions.  This doctor concluded the applicant should be rated 46 percent disabled.

18.  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.

19.  Army Regulation 600-8-24 prescribes the officer transfers from active duty to the Reserve Component (RC) and discharge functions for all officers on active duty for 30 days or more.  It provides principles of support, standards of service, policies, tasks, rules, and steps governing all work required to support officer transfers and discharges.  Paragraph 5-17 of this regulation provides the rules for processing dismissal of an officer due to general courts-martial proceedings.  Specifically, it states that an officer convicted and sentenced to dismissal as a result of General Court-Martial proceedings will be processed pending appellate review of such proceedings as follows:  A Regular Army officer will be retained on active duty until the appellate review is completed or placed on excess leave in accordance with Army Regulation 600-8-10;  An RC officer may be released from active duty pending completion of the appellate review, under paragraphs  2-33 and 2-34, or placed on excess leave in accordance with Army Regulation 600-8-10 in lieu of REFRAD.  The Human Resources Command will make the final determination regarding retention or separation. Separation instructions will be issued by HRC-Alexandria (AHRC-OPD-A) to the appropriate military personnel office. 

20.  Paragraph 1-22a of Army Regulation 600-8-24 states that an officer will normally receive an honorable characterization of service when the quality of the officer’s service has met the standards of acceptable conduct and performance of duty, or the final revocation of a security clearance under a specific Department of Defense (DOD) Directive for reasons that do not involve acts of misconduct, for an officer.  DOD Form 256A (Honorable Discharge Certificate) will be furnished to a discharged officer; however, a certificate is not issued when an officer is released from active duty.  When the separation is based solely on preservice activities, substandard performance of duty, or final revocation of a security clearance for reasons that do not involve acts of misconduct, it will be Honorable.

21.  Paragraph 1-22b of Army Regulation 600-8-24 states that an officer will normally receive an under honorable conditions (general) characterization of service when the officer’s military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A separation under honorable conditions will normally be appropriate when an officer submits an unqualified resignation or a request for release from active duty under circumstances involving misconduct; is separated based on misconduct, including misconduct for which punishment was imposed, which renders the officer unsuitable for further service, unless an under other than honorable conditions separation is appropriate; is discharged for physical disability resulting from intentional misconduct or willful neglect, or which was incurred during a period of unauthorized absence; or is discharged for the final revocation of a security clearance under DOD Directive as a result of an act or acts of misconduct, including misconduct for which punishment was imposed, unless a discharge under other than honorable conditions is appropriate.

22.  Army Regulation 40-501 (Standards of Medical Fitness) provides medical fitness standards to ensure uniformity in the medical evaluation of Army personnel.  The regulation, in effect at the time, states, in pertinent part, that members who are believed to be unfit because of physical disability or who have a condition listed in this regulation will processed to determine their eligibility for physical disability benefits under chapter 61, Title 10, U.S. Code (USC).  

23.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), establishes the Army Physical Disability Evaluation System under the provisions of chapter 61, Title 10, USC and DOD Directive 1332.18, subject: Uniform Interpretation of Laws Relating to Separation from the Military Service by Reason of Physical Disability.  The regulation in effect at the time, states that a member who is charged with an offense for which he could be dismissed or given a punitive discharge may not be referred for disability processing.  However, if the officer exercising appropriate court-martial jurisdiction dismisses the charge or refers it for trial to a court-martial which cannot adjudge such a sentence, the case may be referred for disability processing.   

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions along with the new evidence that she submitted were considered and determined to lack merit.

2.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  The applicant was convicted by a General Court-Martial, which was warranted by the gravity of the offense charged.  Conviction and discharge were effected in accordance with applicable laws and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.  The Board is empowered to change the severity of a sentence imposed in the court-martial process if clemency is determined to be appropriate. The applicant has not established a basis for clemency.

3.  The applicant was given a dismissal pursuant to an approved sentence of a General Court-Martial.  The appellate review was completed and the affirmed sentence ordered duly executed.  All requirements of law and regulation were met and the rights of the applicant were fully protected.  

4.  The applicant’s contention that her indiscipline was a result of her medical condition and her medication were considered and there is no evidence in the available records and the applicant has provided evidence which shows that there was a direct correlation between her acts of indiscipline and her diagnosed medical conditions or medication.  Additionally, even if a correlation could be established, by regulation, a member who is charged with an offense for which she could be dismissed or given a punitive discharge may not be referred for disability processing.

5.  The available evidence also does not support the applicant’s contentions that her punishment was excessive, that she was treated harshly or that her defense counsel was defective.  Further, financial problems are not sufficient to establish a basis for clemency in this case.

6.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  Therefore, she is not entitled to an upgrade of her 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 to amend the decision of the ABCMR set forth in Docket Number AR20070001496, dated 15 January 2008.




      _______ _  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)                                         AR20090001811



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ABCMR Record of Proceedings (cont)                                         AR20090001811



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