IN THE CASE OF:	  

		BOARD DATE:	  21 July 2011

		DOCKET NUMBER:  AR20100028512


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:

* an upgrade of his bad conduct discharge (BCD) to a medical discharge
* reimbursement of $600.00 in military pay he states he forfeited in excess of the amount required by his court-martial sentence
* reimbursement of an unknown amount for being incarcerated for an additional 3 months of hard labor, a term in excess of the amount required by his court-martial sentence

2.  The applicant states, in effect, that:

* he was erroneously enlisted into the military due to medical doctors falsely altering his medical records which invalidated a pre-existing condition that disqualified him from enlistment
* his medical condition was the underlying cause of his misconduct for which he was court-martialed and received a BCD
* despite a reduced sentence, he was made to serve the full sentence and he should be compensated for that portion he served in excess of the reduced sentence

3.  The applicant provides:

* 11-page hand-written legal brief of additional information in support of his application with attached exhibits A, B, and C
* 17-page hand-written brief of facts in support of his application
* 3-page hand-written conclusion
* audiogram, 1976
* DA Form 3082 (Statement of Medical Condition), 1979
* DA Form 3349 (Medical Condition – Physical Profile Record), 1978
* DA Form 3647-1 (Clinical Record Cover Sheet), 1978
* DA Form 3949 (Controlled Substances Record), 1978
* DD Form 2005 (Privacy Act Statement – Health Care Records), 1978
* letter, National Personnel Records Center, 2010
* Standard Forms 88 (Report of Medical Examination), 1976-1977 
* Standard Forms 93 (Report of Medical History), 1976-1979
* Standard Form 502 (Narrative Summary), 1978
* Standard Form 509 (Doctor's Progress Notes), 1978
* Standard Forms 513 (Consultation Sheet), 1977-1978
* Standard Forms 516 (Operation Report), 1978
* Standard Forms 519 (Radiographic Reports), 1977-1978
* Standard Forms 600 (Chronological Record of Medical Care), 1976-1978
* U.S. Disciplinary Barracks (USDB) Form 1-2 (General Purpose Form), 1978

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.  On 1 September 1976, the applicant received an entrance physical at the Cincinnati, OH, Armed Forces Examining and Entrance Station.

	a.  His Standard Form 88 shows:

		(1)  Item 36 (Feet) contains a checkmark indicating "Normal";

		(2)  Item 73 (Notes) contains the entry "No disqualifying defects or communicable diseases were noted this date," dated 11 January 1977;

		(3)  Item 74 (Summary of Defects and Diagnoses) is void of any entries;

		(4)  Item 75 (Recommendations – Further Specialist Examinations Indicated) contains the entry "RBJ [reevaluation believed justified] 4 months," later lined through and initialed by the approving medical officer;

		(5)  Item 76A (Physical Profile – PULHES) contains the entry 
"1-1-1-1-1-3," later lined through, initialed, and corrected to read "1-1-1-1-1-1" by the approving medical officer;

		(6)  Item 76B (Physical Category) contains checkmarks indicating the selection of A, C, and E; however, the checkmarks indicating C and E were later lined through and initialed by the approving medical officer; and

		(7)  Item 77 (Examinee) contains checkmarks indicating he was "Qualified For" and "Not Qualified For" enlistment; however, the "Not Qualified For" checkmark was lined through and initialed by the approving medical officer.

	b.  His Standard Form 93 shows:

		(1)  Item 8 (Statement of Examinee's Present Health and Medications Currently Used) contains the entries "Good" and "None";

		(2)  Item 11 (Have you ever had or have you now?) contains a checkmark indicating "No" in response to "Foot Trouble"; and

		(3)  He authenticated the Standard Form 93 by affixing his signature in the appropriate block.

3.  On 11 January 1977 after receiving medical clearance, he enlisted in the Regular Army.  He completed training and was awarded military occupational specialty 11D (Armored Reconnaissance Specialist).

4.  On 8 June 1977, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) during the period 4-5 June 1977.

5.  On 23 July 1977, he was reported as AWOL by his unit.  On 22 September 1977, he was returned to military control in Buffalo, NY, and remanded to the Personnel Control Facility (PCF) at Fort Dix, NJ.

6.  On 26 October 1977, he accepted NJP under the provisions of Article 15, UCMJ, for being AWOL during the period 23 July-22 September 1977.

7.  On 6 March 1978, he was reported as AWOL by his unit.  On 12 March 1978, he surrendered to his unit.  On 15 March 1978, he was confined by military authorities pending disposition of charges under the UCMJ and the Manual for Courts-Martial (MCM).

8.  On 25 April 1978, he was released from military confinement and returned to his unit.

9.  At a special court-martial at Fort Ord, CA, he was charged with:

* charge I – a single specification of being AWOL from 6 March 1978 until his return to military control on 12 March 1978
* charge II – a single specification of wrongful appropriation of a privately-owned vehicle on or about 5 March 1978
* charge III – a single specification of wrongfully possessing of marijuana
* additional charge I – a single specification of breaking restriction
* additional charge II – a single specification of disrespecting a superior noncommissioned officer
* additional charge III – a single specification of disrespecting a superior commissioned officer
* additional charge IV – a single specification of disobeying a lawful order

10.  He pled guilty to charges I and II and not guilty to the remaining charges and specifications.

11.  On 26 May 1978, the court found him guilty of charges I, II, and III and their corresponding specifications and additional charge IV and its specification.  The court sentenced him to confinement at hard labor for 6 months, forfeiture of $200.00 pay per month for 6 months, and a BCD.

12.  On 28 July 1978, the convening authority approved the sentence and, except for the BCD, he ordered it executed.  The record of trial was forwarded to The Judge Advocate General of the Army for review by the U.S. Army Court of Military Review.

13.  On an unknown date, the U.S. Army Court of Military Review set aside the findings of guilty of charge I and its specification (AWOL), but affirmed the approved findings of guilty for the remainder of the charges and their corresponding specifications.  The court approved only so much of the sentence as provided for 3 months of confinement, forfeiture of $200.00 pay per month for 3 months, and a BCD.

14.  Orders 205-4, USDB, Fort Leavenworth, KS, dated 26 October 1978, assigned him to the PCF at Fort Knox, KY, with a reporting date of 6 November 1978.  He failed to report and was reported as AWOL.  On 5 February 1979, he was apprehended by civilian authorities and remained in their custody pending sentencing on civilian charges prior to his return to military control on 7 April 1979.

15.  Special Court-Martial Order Number 13, Headquarters, U.S. Army Armor Center and Fort Knox, KY, dated 5 March 1979, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered his modified sentence, including confinement at hard labor for 3 months and forfeiture of $200.00 per month for 3 months, duly executed.

16.  On 30 April 1979, he was discharged in accordance with the directives of Special Court-Martial Order Number 13.  His DD Form 214 shows he was discharged as a result of court-martial with an "under conditions other than honorable" characterization of service.  This form further shows he completed 10 months and 21 days of creditable active service.  He signed his DD Form 214.

17.  Army Regulation 635-200, paragraph 11-2 in effect at the time, 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 affirmed sentence ordered duly executed.

18.  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.

19.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states that a member who is charged with an offense for which he could be dismissed or given a punitive discharge, or who is under sentence of dismissal or punitive discharge, may not be referred for disability processing.  However, if the officer exercising appropriate court-martial jurisdiction dismisses the charge, refers it for trial to a court-martial which cannot adjudge such a sentence, or suspends the sentence in the case of a Soldier already under sentence, the case may be referred for disability processing.

20.  Title 31, U.S. Code, section 3702, also known as the Barring Act, prohibits the payment of a claim against the U.S. Government unless the claim has been received by the responsible official within 6 years after the claim accrues.  Among the important public policy considerations behind statutes of limitations, including the 6-year limitation for filing claims contained in this section of Title 31, is relieving the government of the need to retain, access, and review old records for the purpose of settling stale claims, which are often difficult to prove or disprove.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his BCD has been carefully considered; however, there is insufficient evidence to support his request.

2.  He contends he was erroneously enlisted into the Army due to medical doctors falsely altering his medical records which invalidated a pre-existing condition that disqualified him from enlistment.  His records show he received a thorough physical examination and was cleared by competent medical authorities prior to his enlistment.  His contention that his enlistment was fraudulent is unfounded.

3.  He contends his medical condition was the underlying cause of his misconduct for which he was court-martialed and received a BCD.  He has not submitted any evidence to support this contention.  To the contrary, his records show he was given a BCD pursuant to an approved sentence of a special court-martial which was warranted by the gravity of the offenses charged at the time.  His conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.  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.

4.  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 were appropriate.  As a result, clemency is not warranted in this case.

5.  He contends that despite a reduced sentence, he was made to serve the full sentence and he should be compensated for that portion he served in excess of the reduced sentence.  Specifically, he requests reimbursement of $600.00 in military pay he states he forfeited in excess of the amount required by his court-martial sentence and reimbursement of an unknown amount for being incarcerated for an additional 3 months of hard labor, a term in excess of the amount required by his court-martial sentence.  

6.  The applicant was AWOL immediately after his release from confinement.  The order to execute the BCD was issued on 5 March 1979, when he was still unaccounted for.  He did not return to military control until April 1979.  The applicant may have received the Army Court of Military Review decision while he was in confinement, or it may have been issued while he was AWOL.  However, he has provided no evidence to support a conclusion that he did not receive the decision through no fault of his own.

7.  Absent evidence to the contrary, administrative regularity can be presumed; i.e., that the applicant was provided the decision in a timely manner and, furthermore, that he received all the pay that was due to him.  He has provided no evidence, other than his assertion, to overcome that presumption.  

8.  In addition, the applicant was available to sign his DD Form 214.  He could have may pay inquiries at that time and potentially could have contacted his assigned defense counsel.

9.  He has not submitted any evidence to support his contention that he was not reimbursed any lost pay.  Regardless, the Barring Statute prohibits the payment of a claim against the U.S. Government unless the claim has been received within 6 years after the claim accrues.  Therefore, he is not entitled to relief for this portion of his claim.

10.  In view of the foregoing, there is insufficient basis to grant the applicant's 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 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)                                         AR20090019040



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ABCMR Record of Proceedings (cont)                                         AR20100028512



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