BOARD DATE:	  15 October 2009

		DOCKET NUMBER:  AR20090006372 


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 his bad conduct discharge be changed to a medical discharge.

2.  The applicant states he was diagnosed with mental/medical conditions that include post-traumatic stress disorder (PTSD), attention deficit hyperactivity disorder (ADHD), bi-polar condition, and anxiety and depression.  He states that because of his conditions he was unable to control himself.  He states he should have received treatment for his conditions instead of a bad conduct discharge.  He states his mental issues all started when he was run over by a motor vehicle driven by a local national during a protest when he was stationed in Korea.

3.  The applicant provides, in support of his application, copies of his trial counsel's request for a sanity board; six excerpts from his service medical records; and his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 7 July 2006.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military personnel records show he enlisted in the Regular Army on 15 May 2003 for a period of 3 years.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty 21C (Bridge Crewmember).

2.  On 14 November 2003, the applicant incurred an injury to his left leg, causing nerve damage, when he was struck by a truck driven by a Korean civilian.
3.  The applicant submitted a copy of a request, dated 3 November 2005, for a Rule for Court-Martial 706 (Inquiry into the mental capacity or mental responsibility of the accused).  In the request the trial counsel stated the applicant had attempted suicide in July 2005 and was hospitalized at Austin State Hospital in Texas.  The counsel stated the applicant was an inpatient in the Mental Health Clinic at Womack Army Medical Center (WAMC) for about two weeks after his return from Texas.  Counsel stated the applicant was in confinement at the Charleston (NC) Navy Brig and had seen a clinician and had received treatment for ADHD, PTSD, and possible bipolar disorder.  The response to this request is not available for review.

4.  On 9 December 2005, the applicant was tried before a special court-martial.

	a.  The applicant pleaded guilty and was found guilty of two specifications of failure to go to his appointed place of duty and one specification of stealing U.S. currency from another Soldier of a value of $500 or less on divers occasions from 25-29 September 2004.

	b.  The applicant's sentence consisted of discharge from the service with a bad conduct discharge, to be confined for 59 days, and to be reduced to the pay grade of E-1.

5.  On 23 March 2006, the convening authority approved the sentence and stated the applicant would be credited with 59 days of confinement against the sentence to confinement.

6.  On 18 May 2006, the convening authority directed the bad conduct discharge be executed.

7.  On 7 July 2006, the applicant was discharged as a result of a court-martial conviction.  He had completed 2 years, 9 months, and 8 days of active service and he was issued a bad conduct discharge.  He had 134 days time lost.

8.  The applicant submitted the following medical documents:

	a.  A Discharge Referral for hospitalization from 24-29 August 2005 at Bell County hospital.  According to the referral, he had problems with hallucinations, delusions, paranoid thoughts, and a history of manic mood at the time of his discharge.  He was referred to the Department of Veterans Affairs (VA) clinic for follow up care and medications.

	b.  An Emergency Care and Treatment record, dated 13 October 2005, from WAMC that shows he was treated for hyperventilation and tremors of left arm pain.  He was released within 3 hours and his condition was shown as improved.

	c.  An Emergency Care and Treatment record, dated 3 November 2005, from WAMC that shows he was treated for anxiety and chest wall pain.  He was released with his condition shown as unchanged.

	d.  WAMC Nursing Triage Record, dated 3 November (year unreadable), that shows his chief complaint was hyperventilation and numbness and tingling in his hands.  Anxiety, depression, and ADHD are indicated in his past medical history.

	e.  A WAMC Nursing Triage Record, date unreadable, that shows he was there for a confinement physical.

9.  The applicant's complete service medical records were not available for review.

10.  Chapter 3 (Retention Medical Fitness Standards) of Army Regulation 
40-501, then in effect, provided the standards for medical fitness for retention and separation, including retirement.  Soldiers with medical conditions listed in this chapter would have been referred for disability processing.  

11.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a MEBD.  Those members who do not meet medical retention standards based on the criteria in Army Regulation 40-501 (Standards of Medical Fitness) will be referred to a physical evaluation board (PEB) for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition.

12.  Army Regulation 635-40 provides, in pertinent part, that a Soldier charged with an offense under the Uniform Code of Military Justice (UCMJ) or who is under investigation for an offense chargeable under the UCMJ which could result in dismissal or punitive discharge, may not be referred for, or continue, disability processing unless the investigation ends without charges, the charges are dismissed, or the charge is referred for trial to a court-martial that cannot adjudge such a sentence.  A Soldier may not be referred for, or continue, disability processing if under sentence of dismissal or punitive discharge.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3, Section IV, establishes policy and procedures for separating members with a dishonorable or bad conduct discharge; and provides that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial; and that the appellate review must be completed and affirmed sentence ordered duly executed.

14.  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.

15.  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.  The 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 treatment records provided by the applicant indicate that he has had a history (provided by him) of PTSD, ADHD, anxiety, and bipolar disorder.  However, these records do not specifically diagnose him with these conditions nor do they prescribe specific treatment for them.  

2.  In his request for a sanity board, the applicant's trial counsel stated the applicant had received treatment for ADHD, PTSD, and possible bipolar disorder.  However, there is no evidence or official documentation to corroborate the statement.

3.  There is no evidence of record and the applicant has not submitted any evidence that he had a medical condition which would have warranted him being considered by a Medical Evaluation Board (MEBD).  Without an MEBD, there would have been no basis for referring him to a PEB.  Without a PEB, the applicant could not have been issued a medical discharge or retired for physical unfitness.

4.  Even if the applicant had been referred to an MEBD, once he was charged with offenses which could result in a punitive discharge he would have been unable to continue any disability processing until final disposition of the charges.  Once he was sentenced to a punitive discharge he no longer would have been eligible to continue disability processing.

5.  The results of the applicant's trial counsel's request for a sanity board were not available for review.  However, based on the applicant's conviction at a special court-martial on 9 December 2005, it is presumed he was found fit to stand trial.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

6.  The evidence shows that the applicant’s trial by court-martial was warranted by the gravity of the offenses for which he was charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which he was convicted.

7.  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.  

8.  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 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)                                         AR20090006372





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ABCMR Record of Proceedings (cont)                                         AR20090006372



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