IN THE CASE OF:	  

		BOARD DATE:	  15 October 2009

		DOCKET NUMBER:  AR20090008750 


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 upgraded to a general discharge under honorable conditions.

2.  The applicant states, in effect, that an upgrade of his discharge is justified by the fact that he was forced to plead guilty to charges he did not commit.  The applicant also states that he was informed that if he maintained his original claims of "not guilty" he could be subjected to German laws which were much harsher than those of the military.  He continues that it was also stressed that there were no guarantees of leniency unless he plea bargained.

3.  The applicant states that he is not seeking any undeserved benefits typically associated with an upgraded discharge; he just desires to pursue certain federal employment opportunities that his current military status does not permit.  He continues that prior to his discharge, he was being considered for medical discharge due to the fact that he suffered from bronchitis and mild degenerative disc disease (scoliosis).  The applicant states that these medical conditions "are reflective in some of my earlier military records."  He adds that several doctors informed him that he should never have been allowed in the military with those medical issues.  The applicant states that in spite of numerous attempts, he has not been able to obtain his medical records from his duty station in Germany.  

4.  The applicant contends that he never received his appeal information because it was sent to the wrong address (203 instead of 204 N____y Road).  He continues that he did not realize that this type of discharge would have such a profound impact on his career.  The applicant restates that he is not seeking any medical, monetary, or retirement benefits and will sign anything needed to enforce this claim.  He concludes that with a little understanding and forgiveness, he would just like to be able to serve his country in another capacity.

5.  The applicant provides four documents extracted from his medical record as documentary evidence in support of this application.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  A Standard Form 88 (Report of Medical Examination) shows the applicant underwent a medical examination on 7 March 1991 and it was determined that he was not only medically suitable for enlistment, but also to participate in Airborne training.  This form does not indicate that the applicant had a history of any medical malady.  Both the applicant's home address and the address of his next of kin, in pertinent part, were shown as 204 N____y Road on this form.

3.  The applicant's record shows he participated in the Delayed Entry Program during the period of 7 March 1991 through 23 April 1991.  He enlisted in the Regular Army and entered active duty on 24 April 1991.  All of the applicant's enlistment documentation shows the address for his home of record, in pertinent part, as 204 N____y Road.  A review of the applicant's record showed that the address for his home of record consistently appeared as 204 N____y Road throughout his tenure of service.

4.  Upon completion of advanced individual training the applicant was awarded the military occupational specialty (MOS) 13P (Multiple Launch Rocket System/Lance Operator/Fire Direction Specialist).  At the time of his separation, the applicant held the rank of private (PV1)/pay grade E-1.


5.  The applicant provides a DA Form 3647 (Inpatient Treatment Record Cover Sheet), an Optional Form 275 (Medical Record Report) which were both rendered at the Reynolds Army Community Hospital located on Fort Sill, Oklahoma.  He also provides an Imaging Requisition Report that was rendered at Southwestern Medical Center.  Collectively, these documents show that on 18 August 1991 the applicant injured himself by falling and hitting his head on the ground while playing recreational basketball during his off duty time.
It was noted that the applicant sustained a concussion, but no apparent perma-nent damage to his head.  During the course of the medical examination, it was also noted that the applicant had signs of mild early degenerative disk disease.  The attending physician asked the applicant if his syncopal episode had been the catalyst for the denial of his induction into the Air Force.  The applicant denied this and stated that his lack of induction into the Air Force was based upon his missing the cutoff test score by five points.  It was determined that the applicant had no physical limitations and he was returned to full duty on 21 August 1991.

6.  The applicant provides a DA Form 3647 rendered at the Reynolds Army Community Hospital.  This form shows he was diagnosed with early right lower lobe pneumonia on 18 September 1991.  As a result, he was given one day of bed rest and returned to duty.

7.  Headquarters, 32d Army Air Defense Command, Special Court-Martial Order Number 15, dated 17 June 1992, shows the applicant was arraigned at Darmstadt, Germany, on numerous offenses at a special court-martial convened by the command.  The offenses for which the applicant was charged and subse-quently found guilty of include:  wrongfully acquiring and possessing a firearm; carrying a concealed weapon; with intent to deceive, signing and making a false official statement to a military policeman; and breaking restriction.  The sentence was adjudged on 4 May 1992 and the punishment was as follows:  reduction to private/E-1, forfeiture of $500.00 pay per month for three months, confinement for three months, and a bad conduct discharge.  The military judge recommend-ded that the discharge be suspended for six months and if no further misconduct occurred, be disapproved.  The convening authority approved only so much of the sentence as provided for reduction to E-1, forfeiture of $500.00 per month for three months, confinement for 90 days and a bad conduct discharge.

8.  The applicant was confined in the hands of military authorities during the period of 4 May 1992 through 17 July 1992.  Upon completion of his confine-ment, the applicant expressed his desire to separate from the Army and was place in an involuntary excess leave status pending the outcome of his discharge appeal.

9.  Headquarters, U.S. Army Garrison, Fort Dix, New Jersey, Special Court-Martial Order Number 18, dated 13 December 1993, shows the applicant's aforementioned sentence had been finally affirmed.  The appellate review according to Article 71(c) had been complied with and the bad conduct discharge was directed to be executed.  The order also shows that the portion of the sentence pertaining to confinement had been served.

10.  The record shows that on 10 February 1994 the applicant was discharged accordingly.  The DD Form 214 issued to him at the time shows the applicant completed a total of 2 years, 7 months, and 4 days of creditable active military service during his period of enlistment.  This form also shows the applicant had 74 days of lost time during the period 4 May 1992 through 16 July 1992 and 450 days of excess leave during the period 18 November 1992 to 10 February 1994.  His service was characterized as "bad conduct" and the narrative reason for his separation was "court-martial."

11.  The applicant's record is void of any evidence he was diagnosed with any chronic illness or was referred to the Physical Disability Evaluation System while serving on active duty.

12.  The applicant's record contains a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States), dated 5 January 1994, which shows the applicant submitted an application to the Army Discharge Review Board (ADRB) requesting that his bad conduct discharge be upgraded to a general discharge under honorable conditions.  When listing the reasons he felt he was entitled to an upgrade, the applicant stated that his dis-charge was improper because prior to his offense, he had no previous discipli-nary actions against him.  The applicant also contended that during the period leading up to his offense, he was undergoing medical review for asthma.  He states that the limitations of his physical profile were broken several times and his chain of command did not treat him like a Soldier once he began the medical review process.  The applicant concluded that his bad conduct discharge was punishment for not having to perform his duties because of his asthma.  He made no mention of his current contentions that he was forced to plead guilty or that he was undergoing medical review for Bronchitis and mild degenerative disc disease (scoliosis).  The applicant entered his address as 203 N____y Road on this form.

13.  The applicant's record contains ADRB, Arlington, Virginia, letter, dated 1 December 1996, addressed to him at 203 N____y Road (the address he provided on his DD Form 293), which shows the President of the ADRB informed the applicant that after careful consideration of his military records and all other available evidence, the ADRB had determined that he was properly and equitably discharged.  Accordingly, the applicant's request for a change in the character and/or reason of his discharge was denied.

14.  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.

15.  Army Regulation 635-200 (Enlisted Separations), 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.  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.  Paragraph 2-9 contains guidance on the burden of proof.  It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct.  The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  Paragraph 2-11 contains guidance on ABCMR hearings and it states that applicants do not have a right to a hearing before the ABCMR.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded.

2.  The applicant's record is devoid of any evidence and he has failed to provide evidence that he was forced to plead guilty to charges he did not commit or that he was being evaluated for a medical disability discharge during the period prior to his offenses.



3.  The evidence shows the applicant made no mention of his current contentions in the application for discharge upgrade he submitted to the ADRB in January 1994.  Evidence also shows the response to the applicant's ADRB request was mailed to the address he provided on his DD Form 293, dated 5 January 1994.

4.  The applicant's record reveals he committed serious crimes which rendered him triable by court-martial for offenses punishable by a bad conduct or 
dishonorable discharge.  This crime culminated in his trial by special court-martial which was warranted by the gravity of the offenses charged.  His 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.

5.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

6.  After review of the applicant’s available record of service, it was not considered sufficiently meritorious to warrant clemency in this case.  Given the seriousness of the offenses for which he was convicted and his lost time, it is also clear that his service was not satisfactory, thus did not meet the criterion for discharge under either general or honorable conditions.  Therefore, there is no basis for a grant of clemency in the form of an upgraded 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 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)                                         AR20090008750





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ABCMR Record of Proceedings (cont)                                         AR20090008750



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