IN THE CASE OF:	  

		BOARD DATE:	  13 May 2010

		DOCKET NUMBER:  AR20090014999 


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 reinstatement on active duty in order to be processed through the Army’s Physical Disability Evaluation System (PDES) for disabilities incurred in the line of duty.

2.  The applicant states the following:

	a.  He was diagnosed with medical problems prior to his court-martial;

b.  He is completely disabled as a result of military related incidents; and

c.  He was discriminated against.

3.  The applicant provides the following documents:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Army Discharge Review Board (ADRB) – Case Report and Directive
* Medical record documents (15 pages)
* Self-authored statements (2)
* Witness statements (3)
* Department of Veterans Affairs (VA) medical documents
* VA letter, dated 10 March 2006.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military records show he was ordered to active duty as a member of the U.S. Army Reserve (USAR) in support of Operation Iraqi Freedom (OIF) on 8 June 2000.

2.  The applicant's record shows on 1 May 2004, while deployed to Baghdad, Iraq, he sustained multiple non-combat related stab wounds to his left supraclicular area extending to just below the left clavicle into the posterior cervical region.  It also shows he was also stabbed in the back but apparently without complications. 

3.  The record shows the wounds were partially sutured in Iraq but the majority was left open for healing secondarily.  The applicant was initially seen in Iraq and then medically evacuated to Kuwait; Landstuhl, Germany; and ultimately to Fort Eustis, VA in mid May 2004.  While being treated at Fort Eustis, he was referred to a medical evaluation board (MEB) for evaluation.

4.  On 19 May 2005, an MEB considered the applicant’s case.  The MEB summary shows that the applicant was stabbed twice in the neck and upper back on 1 May 2004.  He was diagnosed with “nerve palsy acquired of left brachial plexus; cranial nerve palsy, accessory nerve, secondary to trauma.”  The MEB determined that the applicant’s condition interfered with reasonable performance of his assigned duties and referred him to the physical evaluation board (PEB).

5.  On 29 September 2005, pursuant to his pleas, a special court-martial (SPCM) found the applicant guilty of violating the following Articles of the Uniform Code of Military Justice (UCMJ) as indicated:

	a.  Article 91 (2 specifications), by disobeying a lawful order and by being disrespectful in language to his superior noncommissioned officer on or about
7 December 2004;

	b.  Article 92, by disobeying a lawful order given by his superior noncommissioned officer on or about 7 December 2004;

	c.  Article 107, by signing an official record falsely with the intent to deceive on or about 14 December 2004;

	d.  Article 108, by willfully destroying a reinforced glass window of the Security Forces Control Center detention cell (valued at $500.00) by smashing it on or about 7 December 2004; 

	e.  Article 112a, by wrongfully use of marijuana, a controlled substance between on or about 15 November 2004 and on or about 14 December 2004; and

	f.  Article 121 (2 specifications), by stealing two bottles of cologne, valued at about $64.95 and stealing 3 compact discs valued at about $45.00, the property of Army and Air Force Exchange Service (AAFES)

6.  The applicant's approved SPCM sentence was a reduction to private (PV1)//E-1, confinement for 6 months, and a bad conduct discharge (BCD).  SPCM Order Number 108, issued by Headquarters, United States Army Field Artillery Center, Fort Sill, Oklahoma, dated 19 July 2007, directed, the guilty findings and sentence having been finally affirmed, that the BCD portion of the sentence be duly executed.  On 7 September 2007, the applicant was discharged accordingly.

7.  The DD Form 214 issued to the applicant on the date of his discharge shows that he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), chapter 3, by reason of court-martial, other.  He completed a total of 3 years,
2 months, and 19 days of creditable active service.

8.  On 2 July 2009, the Army Discharge Review Board (ADRB) determined that clemency was warranted in the applicant’s case based on his length and quality of service, to include his combat service.  Accordingly, the ADRB voted to upgrade the applicant’s BCD to a general, under honorable conditions discharge (GD).  A change in the reason for the applicant’s discharge was not authorized under Federal statute.

9.  The applicant provides character references from three individuals who vouched for his upstanding character during his discharge process.  He also provides VA medical record document extracts and "Progress Notes" which document the medical treatment he received between April 2006 and December 2009.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 provides the policies and procedures for separating members with a dishonorable or bad conduct discharge.  It stipulates that a Soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial and that the appellate review must be completed and affirmed before the BCD portion of the sentence is ordered duly executed.

11.  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 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.

12.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army's PDES and sets forth the policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  Paragraph 4-1 states that a Soldier who is charged with an offense under the 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:

	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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he should be reinstated on active duty to be processed through the Army’s PDES for injuries he incurred in the line of duty has been carefully considered.  However, the evidence of record confirms his processing through the PDES, including his evaluation by the MEB and referral to the PEB, which had begun as a result of his service-connected injuries, was 

properly discontinued as a result of court-martial charges being preferred against him for offenses that could lead to a punitive discharge, and ultimately resulted in his conviction by an SPCM and his sentence to a BCD.

2.  By law and regulation, a Soldier who is charged with an offense under the 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.  As a result, the applicant lost his eligibility to 
continue PDES processing once court-martial charges were preferred against him that ultimately led to his receiving a punitive discharge.  

3.  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 applicant's undistinguished record of service and 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.

4.  Notwithstanding the ADRB's decision to upgrade the applicant's BCD to a GD based on clemency, or to his receiving any VA benefits due as a result, given the law prohibits this Board from altering the outcome of a court-martial, the ADRB's upgrade action or its affirmation by this Board has no impact on the applicant's disqualification from further PDES processing based on his court-martial conviction.  As a result, there is an insufficient evidentiary basis to support granting his requested relief.

5.  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 this 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)                                         AR20090014999



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ABCMR Record of Proceedings (cont)                                         AR20090014999



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