IN THE CASE OF:	

		BOARD DATE:	 1 December 2009 

		DOCKET NUMBER:  AR20090009103 


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 correction of his honorable discharge for completion of required active service to a medical retirement.

2.  The applicant states that the military judge at his court-martial told him that he was not sentencing him to a punitive discharge so he could complete his disability processing.  The applicant adds that it is his understanding that reaching the expiration of a term of service obligation will not terminate medical board proceedings.

3.  The applicant provides documents which he lists on his request to the Board.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show that he enlisted in the Regular Army (RA) on 23 November 2004 for 3 years and 21 weeks.  He was awarded military occupational specialty (MOS) 13B (cannon crewmember).  The highest rank/grade he attained during his tenure of service was specialist (SPC)/E-4.

2.  On 3 October 2006, a Medical Evaluation Board (MEBD) convened and determined that the applicant was medically disqualified due to bilateral chondromalacia patella; history of recurrent patella instability; Post Traumatic Stress Disorder (PTSD), chronic; and Crohn's Disease.  The MEBD referred the applicant's case to the Physical Evaluation Board (PEB).

3.  On 6 November 2006, a PEB convened and determined that the applicant was physically unfit due to Crohn's Disease requiring methotrexate and renicade after not responding to prednisone; requires half days due to constant severe abdominal pain and need to use the bathroom frequently (rated 30 percent disabling); and bilateral knee pain secondary to chrondromalacia patella and history of recurrent pateller instability status post-arthroscopic lateral release of the left knee (rated 10 percent disabling).  The PEB found the MEBD diagnosis of PTSD not separately unfitting since it did not appear to be interfering with the performance of his duties.  The PEB recommended that the applicant be placed on the Temporary Disability Retired List (TDRL), rated 40 percent disabled.

4.  On 14 December 2006, orders were issued discharging the applicant from the RA on 9 January 2007 and placing him on the TDRL effective 10 January 2007.

5.  On 10 January 2007, the applicant's discharge orders were revoked for unknown reasons.

6.  On 10 March 2008, the applicant's term of service was extended to 16 October 2008 for medical reasons.

7.  On 20 August 2008, court-martial charges were preferred against the applicant for wrongful distribution of oxycodone, a schedule II controlled substance; and conspiring with (other named Soldiers) to commit offenses under the Uniform Code of Military Justice (UCMJ) of larceny of currency and government benefits of a value of more than $100.00, the property of the U.S. Army; and defrauding the United States by orchestrating sham marriages in violation of U.S. Code, section 371 and Title 8, U.S. Code, section 1325.

8.  On 12 September 2008, the applicant was tried by a special court-martial empowered to impose a Bad Conduct Discharge (BCD).  The applicant was found guilty pursuant to his pleas to wrongfully distributing oxycodone.  The court also convicted him, pursuant to his plea, of larceny of lawful currency and government benefits of a value of more than $100.00, the property of the U.S. Army, and defrauding the United States of and concerning its governmental function and rights of administering the immigration laws; and in order to effect the object of the conspiracy, the applicant did orchestrate sham marriages by paying a number of Soldiers sums of money in order to establish Basic Allowance for Housing (BAH) and Variable Housing Allowance (VHA) and for the purpose of obtaining lawful permanent resident status for foreign born nationals.  The applicant was sentenced to reduction from the rank/grade of SPC/E-4 to Private (PV1)/E-1, to forfeit $750.00 pay per month for one month, to be confined for six months, and to pay a fine of $10,000.00 (and to serve an additional six months of confinement if the fine was not paid).
9.  As a result, the applicant was confined on 12 September 2008.  He was released from confinement on 9 February 2009.

10.  On 13 February 2009, the applicant was honorably released from active duty under the provisions of Army Regulation 635-200, chapter 4, by reason of completion of required active service.  He was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his remaining Reserve obligation.  He had 3 years, 9 months, and 23 days of active service.

11.  In the processing of this case, on 23 October 2009, an advisory opinion was obtained from the U.S. Army Physical Disability Agency (USAPDA).  The advisory official noted that the applicant's claim of error is correct as he should have had his disability processing continued after his release from confinement.  He states that the available records do not provide sufficient evidence to ascertain the applicant's medical condition at the time of his separation from the military.  Therefore, he recommended that the PEB's recommendation be approved, that the applicant be placed on the TDRL, and that he be required to undergo an immediate reevaluation to see if final disposition of his case can be made.

12.  On 27 October 2009, a copy of the advisory opinion was sent to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  He failed to respond.

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4–1, states, in pertinent part, that Soldiers charged with an offense under the UCMJ or who are under investigation for an offense(s) chargeable under the UCMJ which could result in dismissal or punitive discharge, may not be referred for, or continue disability processing unless:

   a.  The investigation ends without charges.

   b.  The officer exercising proper court-martial jurisdiction dismisses the
charges.

   c.  The officer exercising proper court-martial jurisdiction refers the charge for trial to a court-martial that cannot adjudge such a sentence.

14.  Army Regulation 635-200, sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes the policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave.  Section III (Acts or Patterns of Misconduct), paragraph 14-12c applies to the separation of individuals who committed a serious military or civil offense, if the specific circumstance of the offense warrants separation and a punitive discharge would be authorized for the same or a closely-related offense under the manual for courts-martial.  When separation is ordered for misconduct, an under other than honorable conditions discharge is normally considered appropriate.

15.  Paragraph 14-2 states that commanders will consider Soldiers meeting the criteria of Section III of this chapter and convicted by court-martial, but not sentenced to a punitive discharge, for administrative separation under Section III, when the underlying misconduct warrants separation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant had been determined to be physically unfit and he was pending separation due to physical unfitness.  His term of service was extended to allow for the completion of his physical disability evaluation system (PDES) processing.

2.  The applicant's record is unclear on why his discharge and placement on the TDRL was revoked.

3.  However, once court-martial charges were preferred against him to a court-martial which was empowered to sentence him to a BCD, his PDES processing was terminated in accordance with Army Regulation 635-40.

4.  Since the applicant was not sentenced to a punitive discharge, he could have requested another extension of his enlistment to be processed under the PDES.  Since the applicant's enlistment had already been extended once to allow him to be processed under the PDES, he would have certainly known that he could request another extension of his enlistment.  Despite this knowledge, there is no evidence that he attempted to extend his enlistment for this purpose.

5.  It is noted that had the applicant extended his enlistment, it is possible that his commander would have initiated administrative separation action to discharge him due to misconduct for the offenses he was convicted of.  There is no double jeopardy in processing a Soldier for misconduct for offenses he was found guilty 
of committing by a court-martial.  Since discharges due to misconduct may be 
characterized as under other than honorable conditions, the initiation of discharge action for misconduct would have once again terminated his processing under the PDES.

6.  Whether or not the applicant consciously decided to not extend his enlistment to ensure he was honorably discharged is speculative at best.  However, since he did not extend his enlistment he was honorably discharged which entitles him to all benefits administered by the Department of Veterans Affairs.

7.  To change the applicant's records to show he was again processed under the PDES and transferred to the TDRL would be inappropriate since there is no evidence or indication that his commander would not have initiated action to separate him for misconduct, thereby terminating his processing under the PDES.

8.  The advisory opinion from the PDA has been carefully considered.  The USAPDA's recommendation is appropriate when viewing the case from the strict viewpoint of the PDES.  However, notwithstanding the USAPDA's opinion, they could not take into consideration the fact that the applicant could have possibly been processed for administrative separation and discharged due to misconduct if his enlistment was extended.

9.  As such, there is no basis for granting the applicant's request.

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)                                         AR20090009103



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ABCMR Record of Proceedings (cont)                                         AR20090009103



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