IN THE CASE OF:	  

		BOARD DATE:	       1 JULY 2009

		DOCKET NUMBER:  AR20090005636 


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 or changed to a medical discharge.  He also requests that his line of duty (LOD) injuries be properly documented. 

2.  The applicant states, in effect, that his lawyer railroaded him into a guilty plea bargain, that he was made aware of evidence after his court-martial that could have helped him, that he was denied emergency medical care by the cadre at Fort Sill, OK that his back and shoulder injuries and mental condition occurred while he was on active duty, and that these injuries were all LOD injuries that were never documented correctly.  He states that he has Post Traumatic Stress Disorder (PTSD) because of factors surrounding his period of confinement, that he was beaten, that he was verbally, emotionally, and physically abused regularly in pretrial confinement, and that not all of this was documented.   

3.  The applicant further states that he had some injuries/psychological issues which occurred in the LOD, that his back injury occurred in December 2005, that he has medical paperwork which show a "yes" for LOD determination for his back injury, and that his back injury was misdiagnosed as tendonitis.  He claims that he developed shoulder problems that were made worse by confinement, that he was assaulted several times, that he was thrown over a metal bunk onto the concrete floor, and that his shoulder was misdiagnosed as well.   He points out that after he was released from confinement he had two shoulder surgeries and one back surgery.   


4.  The applicant provides a medical record with a stamped entry 
"PRESUMPTIVE LINE OF DUTY YES," portions of his record of trial, records of assault while in confinement, a letter from his father, and letters written to the Command Sergeant Major and the Secretary of the Army in support of his application.  

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 2 June 1973.  He enlisted in the Regular Army on 4 May 2004 and trained as a health care specialist.  

2.  The applicant provided a medical record, dated 24 December 2005, which shows he went to the emergency room for low back muscle strain.  This medical record contains a stamped entry "PRESUMPTIVE LINE OF DUTY YES PARA [paragraph] 39-2A AR [Army Regulation] 600-8-1" [Army Casualty and Memorial Affairs and LOD Investigations].  

3.  On 4 August 2006, in accordance with his pleas, the applicant was convicted by a general court-martial of being absent without leave (AWOL) from 10 March to 27 April 2006 and two specifications of committing indecent assault upon a female Soldier.  He was sentenced to a forfeiture of $1,200.00 pay per month for 
16 months, to be confined for 16 months, and to be discharged from the service with a bad conduct discharge.  On 15 December 2006, the convening authority approved only so much of the sentence as provided for a forfeiture of $1,200.00 pay per month for 16 months, confinement for 12 months, and the bad conduct discharge.  

4.  The applicant provided a Final Report of Investigation, dated 15 October 2006, which states, in pertinent part, that the applicant was involved in a physical altercation with another inmate.  The inmate observation report states the applicant received on site first aid to a deep cut on his eyebrow.  A sworn statement, dated 15 October 2006, states, in pertinent part, that the applicant was taken to the emergency room. 

5.  The applicant provided a Final Report of Investigation, dated 24 December 2006, which states, in pertinent part, that the applicant was involved in a physical altercation with another inmate.  The report states that the applicant was sent to the hospital where he received medical treatment for a broken nose. 

6.  The applicant provided a Final Report of Investigation, dated 8 February 2007, which states, in pertinent part, that the applicant was involved in a physical confrontation with another inmate.  The applicant was released from confinement on 20 February 2007.
7.  On 28 November 2007, the United States Army Court of Criminal Appeals affirmed the findings of guilty and the sentence.  The court also corrected the applicant's general court-martial order by deleting the word "named" in line two of the Specification of Additional Charge 1 (indecent assault); to reflect the Finding of Additional Charge II (indecent assault) correctly as "None entered."; and to reflect in line four of the Specification of Additional Charge II the finding correctly as "None entered.  The military judge merged the Specification of Additional Charge II into the Specification of Additional Charge I." 

8.  A DA Form 3349 (Physical Profile), dated 14 February 2008, shows that while on involuntary excess leave the applicant was issued a temporary profile of 231111 for right shoulder pain.  

9.  A DA Form 3349, dated 17 March 2008, shows that while on involuntary excess leave the applicant was issued a temporary profile of 133111 for right shoulder pain, low back pain.

10.  On 28 August 2008, the convening authority ordered the bad conduct discharge to be executed.

11.  Accordingly, the applicant was discharged with a bad conduct discharge on 18 February 2009 under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 3, as a result of a court-martial.  He had served a total of 4 years, 1 month, and 9 days of creditable active service with 251 days of lost time due to being AWOL and in confinement.  He was placed on excess leave from 28 February 2007 to 18 February 2009 (a total of 722 days).

12.  In support of his claim, the applicant provided numerous medical records pertaining to back pain, a back surgery in September 2008, and two shoulder surgeries in 2007.  He provided medical documentation which shows he was diagnosed with depression and PTSD on 3 April 2008.  

13.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Chapter 3 of this regulation states that a Soldier will 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 sentence ordered duly executed.

14.  Army Regulation 635-200 (Personnel Separations), 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.

15.  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.

16.  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 ABCMR 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.

17.  Chapter 7 (Physical Profiling) of Army Regulation 40-501 (Standards of Medical Fitness) provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted.  Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES): P-physical capacity or stamina, U-upper extremities, L-lower extremities, H-hearing and ears, E-eyes, and S-psychiatric.  Numerical designator "1" under all factors indicates that an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment.  Numerical designators "2" and "3" indicate that an individual has a medical condition or physical defect which requires certain restrictions in assignment within which the individual is physically capable of performing military duty.  The individual should receive assignments commensurate with his or her functional capacity.  

18.  Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

19.  Army Regulation 600-8-10 (Leaves and Passes) prescribes the policies for the leave and pass function of the Military Personnel System.  The regulation 

defines excess leave as leave in excess of accrued or advanced leave.  The Soldier is not entitled to pay and allowances for a period of such leave.

20.  The Department of Defense Financial Management Regulation states, in pertinent part, that members on excess leave are not entitled to pay and allowances.

21.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.  Under the laws governing the Army Physical Disability Evaluation system, Soldiers who sustain or aggravate physically unfitting disabilities must meet several LOD criteria to be eligible to receive retirement and severance pay benefits.  One of the criteria is that the disability must have been incurred or aggravated while the Soldier was entitled to basic pay or was the proximate cause of performing active duty or inactive duty training.

22.  Paragraph 39-2a of Army Regulation 600-8-1 states that the LOD determination is presumed to be "LOD YES" without an investigation in the case of disease; in the case of injuries clearly incurred as a result of enemy action or attack by terrorists; and in the case of death due to natural causes or while a passenger in a common commercial carrier or military aircraft.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contends that his lawyer railroaded him into a guilty plea bargain and that after his court-martial he was made aware of evidence that could have helped him relate to evidentiary and procedural matters that should have been addressed and conclusively adjudicated during his appellate proceedings.

2.  Trial by court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.

3.  The applicant's record of service included one general court-martial conviction and 973 days of time lost.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general or an honorable discharge.

4.  The applicant's contention that he was denied emergency medical care while in confinement was considered.  However, the applicant provided documentation which shows he received medical treatment on two occasions for injuries sustained as a result of physical altercations while in confinement.

5.  The applicant's contentions that his back injury occurred in December 2005 and that this injury was determined to be in the LOD were considered.  However, the medical record provided by the applicant shows he was seen in the emergency room for low back/muscle strain.  The medical record contains no diagnosis, no evidence of his vital signs, and no disposition instructions.  The stamped entry "PRESUMPTIVE LINE OF Duty YES PARA 39-2A AR 600-8-1" merely means that the LOD determination is presumed to be "LOD YES" without an investigation in certain cases.

6.  The applicant's contentions that his back, shoulder injuries and mental condition occurred while he was on active duty and that these LOD injuries were not properly documented were carefully considered.  However, his back and shoulder surgeries occurred after his release from confinement and while he was on excess leave.  He was also diagnosed with depression and PTSD after his release from confinement and while he was on excess leave.  Since he was not entitled to basic pay while on excess leave, and in accordance with the governing regulation, there is insufficient evidence to show he met the LOD criteria that would have warranted receiving disability benefits.  

7.  Since there is no evidence of record to show the applicant was ever medically unfit to perform his duties, there is no basis for granting his request for a medical discharge.  

8.  Evidence of record shows the applicant suffered LOD injuries on 15 October 2006 and on 24 December 2006 while in confinement.  Therefore, his records should be corrected to show these injuries were found to be in the LOD, not due to his own misconduct.








BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X_____  ____X____  ____X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing that the individuals injuries that occurred on 15 October 2006 and 
24 December 2006 were found to be in the LOD, not due to his own misconduct .

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to upgrading his bad conduct discharge or issuing a medical discharge.  




      _______ _   _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)                                         AR20090005636



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ABCMR Record of Proceedings (cont)                                         AR20090005636



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