IN THE CASE OF:	

		BOARD DATE:	  16 March 2010

		DOCKET NUMBER:  AR20090011593 


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 upgrade of his bad conduct discharge (BCD) to an honorable discharge.

2.  The applicant states that his medical status influenced the way his case was handled.

3.  In support of his application, the applicant provides copies of his HIV [human immunodeficiency virus] results, a DA Form 4856 (General Counseling), a DA Form 2166-7 (NCO [Noncommissioned Officer] Evaluation Report [NCOER]), a letter from his company’s first sergeant, a letter from the Walter Reed Institute of Research, his Commonwealth of Puerto Rico Police Department Certificate of No Penal Record, and a page from the May 1996 edition of the "Soldiers" magazine.

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.  The applicant's military records show he enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program (DEP) on 23 May 1980.  On 7 January 1981 he was discharged from the USAR DEP and he enlisted in the Regular Army (RA) in pay grade E-1 on 8 January 1981.  He was promoted to sergeant first class on
1 July 1993.

3.  The applicant submitted a copy of his lab results, dated 22 January 1992, which shows he was found to be HIV positive.  He also submitted a copy of a DA Form 4856, dated 27 July 1994, showing he received counseling on his strength and excellent leadership.  He further submitted a copy of a Relief for Cause NCOER for the rating period April 1994 through January 1995 that he received based on an alcohol-related incident involving his Soldiers, resulting in his inability to lead them effectively.

4.  In April 1995, the applicant was convicted by general court-martial of assault consummated by battery between 31 May and 31 July 1994.  He was sentenced to a reduction to pay grade E-1, a forfeiture of $564.00 pay per month for three months, confinement for three months, and a BCD.  The sentence was adjudged on 12 April 1995.

5.  On 27 June 1995, the convening authority approved the sentence, with the exception of the BCD, and ordered it duly executed.

6.  The applicant also submitted a copy of a letter, dated 6 October 1995, from the Walter Reed Army Institute of Research, wherein he was thanked for his participation in Phase 1 of a clinical trial of HIV vaccinations.

7.  On 25 January 1996, the U.S. Army Court of Criminal Appeals approved the findings of guilty and found the sentence correct in law and fact and affirmed the entire sentence, to include the BCD.

8.  The applicant further submitted a copy of page 11 of the "Soldiers" magazine, May 1996 edition, wherein he highlighted the article titled, “HIV Discharges Delayed."  The article stated that President Clinton directed the Defense Department to delay enforcing a National Defense Authorization Act provision requiring the discharge of HIV-positive service members until August of that year. 
The article further states that the authorization action affected more than 1,000 

service members and would deny them benefits they would normally have received if allowed to serve until medically disabled.

9.  There is no evidence the applicant was referred to a medical evaluation board (MEB) or a physical evaluation board (PEB) for consideration of his HIV condition during his period of active duty and/or considered medically unfit for retention on active duty and referred for disability processing for his condition.

10.  On 21 June 1996, the appropriate authority ordered the BCD be executed.

11.  The applicant also submitted a copy of a letter, dated 8 July 1996, wherein his supervisor, the first sergeant of Headquarters and Headquarters Company, 29th Signal Battalion, Fort Lewis, WA, stated that the applicant was the platoon sergeant for approximately 36 Soldiers, 14 vehicles, and all associated power unit and communication equipment with an estimated value of over 1.3 million dollars.  He also stated that the applicant was a superb platoon sergeant, always had 100 percent accountability, and his Soldiers were training to the highest standards.

12.  On 17 July 1996, the applicant was discharged in pay grade E-1 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 3, section IV, by reason of court-martial, and issued a BCD.  He was credited with 15 years, 3 months, and 25 days of net active service and lost time from 12 April 1995 to 25 June 1995 due to military confinement.

13.  The applicant further submitted a copy of a certificate, dated 26 April 2005, that stated a search revealed his name did not appear in penal records in the Criminal Identification Division of the Puerto Rico Police Department.

14.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 3-11 of that regulation provided that a Soldier would be given a BCD pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the sentence affirmed before it could be duly executed.

15.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or 
was otherwise so meritorious that any other characterization would be inappropriate.

16.  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.

17.  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 change a discharge due to matters which should have been raised in the appellate process, 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.

18.  Army Regulation 600-110 (Identification, Surveillance, and Administration of Personnel Infected with HIV), paragraph 4-13d, states that HIV infected enlisted Soldiers remain subject to involuntary administrative separations under any provision of Army Regulation 635-200; however, Soldiers who no longer meet medical retention standards will not be involuntarily separated except under Army Regulation 635-200, chapter 3, section IV.  Paragraph 4-14a specifies that HIV infected military personnel who demonstrate progressive clinical illness or immunological deficiency, as determined by medical authorities, do not meet medical retention standards of Army Regulation 40-501 (Standards of Medical Fitness) and may be processed for separation per Army Regulation 40-501 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his discharge based on his medical status.  He has not shown error, injustice, or inequity for the relief he now requests.

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 characterized the misconduct for which the applicant was convicted.

3.  The evidence of record shows that the applicant was convicted by a general court-martial of assault and battery and discharged pursuant to the sentence of a 
general court-martial.  There is no evidence the applicant was being processed for any type of medical separation for being medically unfit due to HIV prior to his BCD.  The applicant has submitted no evidence other than his contention that his 
HIV status influenced the handling of his case.  The documentation he submitted pertaining to HIV discharges being delayed affected the administrative discharge of service members, and not those being discharged with a punitive discharge.  His misconduct was the reason for his discharge and not his medical status.

4.  The applicant has provided no evidence to show that his discharge was unjust at the time of his offenses.  There is no error or injustice in his record.  He has provided no evidence or argument to show his discharge should be upgraded.  He was properly discharged in accordance with pertinent regulations, with due process.

5.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

6.  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 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.

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)                                         AR20090011593



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ABCMR Record of Proceedings (cont)                                         AR20090011593



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