BOARD DATE:	  10 November 2010

		DOCKET NUMBER:  AR20100012488 


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 physical disability retirement or separation.

2.  The applicant states, in effect, despite the fact that he was using drugs he was still injured as the result of a careless chain of command.  He contends his drug use was due to the pain he incurred after he was severely beaten by Soldiers in his unit.  

3.  He feels his bad conduct discharge is an injustice.  He claims to have been beaten almost to death and now suffers hand, neck, visual, and psychological impairments as a result.  

4.  The applicant provides the following:

* An extract of his Army medical records
* Copies of his civilian medical treatment records

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.  After having 4 months of prior inactive service in the Delayed Entry program, the applicant enlisted in the Regular Army on 17 August 1999.  He completed the training requirements and he was awarded military occupational specialty 11M (Fighting Vehicle Infantryman).  He was assigned to F Troop, 2nd Squadron, 11th Armored Cavalry Regiment, Fort Irwin, CA.  His records show he attained the rank of private E-2.

3.  The applicant's medical records show that while in the Army, between 2000 and 2001, he sustained injuries to his left hand when the hatch door of a Bradley vehicle slammed shut on it.  He also sustained head trauma and lacerations to his face as a result of being repeatedly beaten with a bottle around February 2001.  He received medical treatment for his injuries.

4.  On 21 February 2002, the applicant was convicted by a general court-martial of three specifications related to methamphetamines, including wrongfully distributing methamphetamines on divers occasions between 1 January 2001 and 31October 2001, under Article 112a of the Uniform Code of Military Justice (UCMJ).  General Court-Martial Order Number 4, dated 27 November 2002, shows he was sentenced to be reduced to the grade of private E1, to forfeit all pay and allowances, confinement for 3 years, and a bad conduct discharge. 

5.  The sentence was adjudged on 21 February 2002 and subsequently approved by the convening authority with the exception of the part of the sentence which pertained to confinement.  His sentence to confinement was reduced to 6 months.

6.  His records show he was confined at the U.S. Army Personnel Confinement Facility, Fort Knox, KY from 21 February through 12 July 2002.  He was placed on excess leave on 12 July 2002, while awaiting the decision of the United States Army Court of Criminal Appeals.  On 22 December 2004, the findings of guilty and the sentence were affirmed.  

7.  On 17 June 2005, the applicant was discharged, with a bad conduct discharge, pursuant to his conviction by court-martial.  His DD Form 214 shows he completed a total of 5 years, 5 months, and 10 days of active service.  This form also shows he was on excess leave from 12 July 2002 through 17 June 2005; this period was creditable for all purposes except pay and allowances.
8.  Army Regulation 40-501 (Standards of Medical Fitness), in effect at the time of his discharge, stated in Table 8-3, a separation medical examination was not required for enlisted Soldiers being processed for separation under the provisions of chapter 3, Army Regulation 635-200 (chapter 3, section IV – Dishonorable and Bad Conduct Discharge) and individual is on excess leave.

9.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank or rating.  In pertinent part, it states that the mere presence of a physical impairment does not, of itself, justify a finding of unfitness because of physical disability.  Paragraph 3-1 states that a Soldier may not be referred for, or continue, disability processing if under sentence of dismissal or punitive discharge.  

10.  Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

11.  Army Regulation 635-200 governs the separation of enlisted Soldiers on active duty.  Paragraph 3-10 states that a member will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review and after such affirmed sentence has been ordered duly executed.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request to upgrade his bad conduct discharge to a physical disability retirement or separation was carefully considered.

2.  It is acknowledged the applicant suffered injuries as a result of a violent act and the accidental closing of a hatch door on his hand.  However, there is no evidence of record to show residuals from those injuries rendered him physically incapable of performing his duties.  He continued to perform duties until his conviction by a general court-martial.  

3.  Because of his sentence to a punitive discharge, the applicant was not eligible for referral to the disability processing system for any past disabilities he may have incurred (and there is no evidence to show any disabilities rendered him incapable of performing his duties) or for any disabilities he may have incurred subsequent to his conviction by court-martial and prior to his 17 June 2005 discharge.
4.  The regulation did not require the applicant to be given a medical separation examination.

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)                                         AR20100012488



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100012488



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1