IN THE CASE OF:	  

		BOARD DATE:	  17 May 2011

		DOCKET NUMBER:  AR20100027240 


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 dishonorable discharge to a medical discharge. 

2.  The applicant states he was medically unstable at the time due to being outside the United States. 

3.  The applicant did not provide any evidence.

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.  Having had prior service in the U.S. Army Reserve, the applicant's records show he enlisted in the Regular Army on 21 September 1977 and held military occupational specialty 11M (Fighting Vehicle Infantryman).  He served in Korea from 7 January 1978 to 4 January 1979, during which he was reduced from E-3 to E-2.  He reenlisted for 3 years on 16 April 1981 and attained the rank/grade of sergeant (SGT)/E-5 on 1 May 1981.  

3.  On 6 November 1981, at Fort Ord, CA, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go at the time prescribed to his appointed place of duty. 

4.  On 12 August 1982, also at Fort Ord, CA, he underwent a medical examination wherein he indicated that he was in good health.  The military physician determined he was medically qualified for retention.

5.  His records also show he served in Germany from 26 October 1982 to 11 June 1984.  While in Germany, he accepted NJP under the provisions of Article 15 of the UCMJ as follows:

* On 29 November 1983, for being absent without leave (AWOL) from 18 to 20 October 1983
* On 16 January 1984, for being found drunk while on duty 

6.  Also while in Germany, he underwent an administrative separation physical on 19 September 1983 and he again indicated that he was in good health.  The military physician determined he was medically qualified for separation. 

7.  On 14 June 1984, he was convicted by a general court-martial of one specification of possessing 23.66 grams, more or less, of marijuana with intent to distribute.  The court sentenced him to a reduction to private/E-1, a forfeiture of all pay and allowances, confinement at hard labor for 1 year, and a dishonorable discharge.

8.  On 15 August 1984, the convening authority approved the sentence and, except for that part of the sentence extending to the dishonorable discharge, ordered it executed.  The record of trial was forwarded to The Judge Advocate General of the Army for appellate review.

9.  On 29 November 1984, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

10.  Headquarters, U.S. Army Correctional Facility, Fort Riley, KS, General Court-Martial Order Number 120, dated 26 March 1985, shows that, after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's dishonorable discharge sentence executed.

11.  On 22 March 1985, he underwent a separation physical at Fort Riley, KS, and he again indicated that he was "in good health at this time."  The military physician determined he was medically qualified for separation. 

12.  On 29 March 1985, he completed a DA Form 3081-R (Periodic Medical Examination) wherein he indicated that he underwent a medical examination, in conjunction with his separation, on or about 22 March 1985 at Fort Riley, KS, and to the best of his knowledge there had been no significant change in his medical condition since the accomplishment of that medical examination.   

13.  The applicant was discharged from the Army on 5 April 1985.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged in accordance with Army Regulation 635-200 (Personnel Separations) as a result of court-martial with a dishonorable discharge.  This form further shows he completed a total of 7 years and 12 days of creditable military service and he had 291days of lost time.

14.  On 6 October 2003, he petitioned the ABCMR for an upgrade of his dishonorable discharge to an honorable discharge; however, on 15 June 2004, the Board denied his request.

15.  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.

16.   Army Regulation 635-40 establishes the Army Physical Disability Evaluation System (PDES) and sets forth 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.  It provides for MEB's, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness).

	a.  Paragraph 3-1 states that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade, or rating.  The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated.

	b.  Paragraph 4-1 provides that a Soldier may not be referred for disability processing if charged with an offense referred to a general court-martial unless the charges are withdrawn and the trial results in acquittal.

17.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30 percent.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was convicted by a general court-martial which was warranted by the gravity of the offense charged at the time.  The conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.  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.

2.  He was given a dishonorable discharge pursuant to an approved sentence of a general court-martial.  The appellate review was completed and the affirmed sentence ordered duly executed.  All requirements of law and regulation were met and his rights were fully protected.  There is no evidence in his records and he did not provide any evidence that his possession and intent to distribute marijuana was a result of being unstable. 

3.  Prior to and after his conviction by the general court-martial, the applicant underwent several medical examinations.  In each case he indicated he was in good health and in each case he was found medically qualified for retention or separation by an appropriate medical authority.  

4.  There is no evidence in his records that shows he was physically unfit at the time of his discharge.  A Soldier is considered unfit when the evidence establishes that the Soldier is unable to reasonably perform the duties of his or her office, grade, rank, or rating.  The available evidence shows he was fully able to perform the duties of his grade and/or military occupational specialty and fully qualified for separation.  His possession and intent to distribute marijuana was simply a choice he made and not related to any medical condition.

5.  The applicant failed to show through the evidence submitted or the evidence of record that he was medically/physically unfit at the time of separation and should have been processed for separation due to physical disability or that his serious offense was a result of a medical condition.  Even if he were found medically unfit, his court-martial rendered him ineligible for a disability evaluation. In view of the circumstances in this case, there is insufficient evidence to grant the requested relief.

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)                                         AR20100027240



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ABCMR Record of Proceedings (cont)                                         AR20100027240



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