IN THE CASE OF:	  

		BOARD DATE:	  27 October 2009

		DOCKET NUMBER:  AR20090004163 


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 that her bad conduct discharge (BCD) be upgraded to an honorable discharge.

2.  The applicant states, in effect, that she was absent without leave (AWOL) because she was suffering from the effects of multiple sclerosis.  She states that she was not physically able to do what she wanted/needed to do.  However, no one would listen to her complaints about these problems; therefore, she went home to be comforted.  She served with honor from December 1998 until April 2005.   

3.  The applicant provides, in support of her application, copies of her DD Form 214 (Certificate of Release or Discharge from Active Duty), and approximately 40 pages of service and Department of Veterans Affairs (VA) medical records 

CONSIDERATION OF EVIDENCE:

1.  The applicant was a Regular Army sergeant with approximately 6.3 years of service, and she intentionally missed unit movement to Iraq on 27 April 2005.

2. On 9 May 2005, the applicant accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for the above offense.  Her punishment consisted of reduction to pay grade E-4, a forfeiture of $978 pay for 1 month, and 45 days of extra duty.  

3.  On 11 October 2005, the applicant was convicted by a general court-martial of being AWOL from 14 May to 12 June 2005 and for missing movement on 
28 April and 17 June 2005.  The record of trial is not available.  She was sentenced to 13 months in confinement and a BCD.  

4.  The convening authority approved only that portion of the sentence that provided for 12 months in confinement and a BCD.  The applicant was credited with 158 days that she had already served in confinement against the sentence and, except for the BCD, the sentence was ordered executed.  

5.  The applicant’s DD Form 214 shows she was separated, on 23 June 2006, with a BCD.  She had completed 7 years and 4 days of creditable service.  It also shows that she had 53 days of excess leave and 170 days of lost time due to being AWOL and in confinement. 

6.  The medical records submitted by the applicant show:

	a.  on 14 Nov 2003, she reported that her toes on both feet tingled/hurt – possible metatarsal tunnel syndrome – refer to podiatry;

	b.  on 9 February 2004, podiatry referred the applicant to physical therapy- podiatry continued to follow/treat her through November 2004.  On 2 December 2004, nerve conduction studies were ordered;

   c.  on 4 January 2005, a chronological record described her condition as follows:  "29 year old active duty female presents for follow-up of bilateral tarsal tunnel syndrome.  Patient has constant numbness and tingling in both feet.  With any activity this increases to a pain level.  Pain is present with boots, shoes, or barefoot.  She has an appointment tomorrow with physical medicine for nerve conduction studies.  She is also currently facing possible deployment early February."  Nerve conduction studies were rescheduled for 25 February;
   
   d.  on 13 May 2005, the applicant complained of left arm numbness and was sent to sick call;

	e.  medical attention and treatment continued and symptoms in the arm grew worse ? neurological examination and nerve conduction studies were abnormal and unexplained ? follow up with the referring provider was planned as was referral to physical therapy for night splints to prevent elbow flexion and evaluation of activities of daily living that put pressure on the area ? repeat studies if symptoms worsen and repeat testing was recommended.

	f.  the VA medical facility in Durham, North Carolina performed a neurology consultation that produced a 6 February 2008 evaluation stating "told 
Ms. [applicant] we're fairly sure she has relapsing remitting multiple sclerosis";

	g.  an April 2008, VA evaluation produced an impression that "favors a demyelinating [loss or destruction of nerve sheath] process such as multiple sclerosis."

7.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, U.S. 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.

8.  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.  In pertinent part, it states that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  

9.  Army Regulation 635-200 sets forth the policy for the separation of enlisted personnel.  Paragraph 3-7a provides 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.

10.  Army Regulation 635-200, paragraph 3-7b, provides 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that she was AWOL because she was suffering from the effects of multiple sclerosis.  She physically could not do what she wanted/needed to do.  However, no one would listen to her complaints about these problems; therefore, she went home to be comforted.  She served with honor from December 1998 until April 2005.   

2.  Trial by court-martial was warranted due to the gravity of the offenses for which she was charged.  Both the conviction and discharge were presumably effected in accordance with the applicable laws and regulations.

3.  Any redress by this Board of the finality of a court-martial conviction is prohibited by law.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  Given the applicant's undistinguished record of service and absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted in this case.

4.  The discharge appropriately characterizes the misconduct for which the applicant was convicted.

5.  The applicant's current health situation is tragic.  However, at the time she committed the offenses she had not been diagnosed with multiple sclerosis.

6.  The applicant's contentions relate to no issues which could have been raised as matters of defense or mitigation.  As such, she has provided no evidence sufficient for granting clemency in this case.

7.  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 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)                                         AR20090004163



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ABCMR Record of Proceedings (cont)                                         AR20090004163



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