IN THE CASE OF:	  

		BOARD DATE:	  28 June 2011

		DOCKET NUMBER:  AR20100030208 


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).  He also requests correction to his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show award of the Expert Field Medical Badge.

2.  He states he believes his discharge was in error or unjust because the judge during his court-martial was found to be racist towards minority service members. He was advised of this by a judge advocate officer who stated that the majority of the judge's cases were being overturned.  When he was in the process of moving to Dallas, Texas, he lost contact with this officer, but filed a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) in the allotted time.  His request was denied.

3.  He further states that he was also awarded the Expert Field Medical Badge.

4.  He provides a copy of his DD Form 214.

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 Regular Army (RA), in pay grade E-1, on 13 May 1983, for 4 years.  He completed training and he was awarded military occupational specialty (MOS) 91B (Medical Noncommissioned Officer (NCO)).  

3.  On 5 August 1983, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for assault consummated by battery on 31 July 1983.  

4.  He served in Germany from 16 October 1983 through 15 April 1985.

5.  He reenlisted in the RA on 11 August 1988 for 2 years.  He was promoted to pay grade E-5 on 1 January 1990.  He again reenlisted in the RA on 4 September 1990 for 5 years.

6.  On 25 April 1991, the applicant's company commander initiated a Report to Suspend Favorable Personnel Actions against the applicant for adverse action.

7.  On 13 December 1991, he was convicted by a general court-martial of one specification each of:

* Wrongfully using cocaine on or about 16 April 1991
* Wrongfully having sexual intercourse with a woman, not his wife, on or about early January 1991
* Committing sodomy on or about early January 1991
* Wrongfully having sexual intercourse with another woman, also not his wife, on or about October through November 1990

He was sentenced to a reduction to pay grade E-1, a forfeiture of $400.00 pay for 6 months, confinement for 6 months, and a BCD.  

8.  On 4 February 1992, the convening authority approved the sentence and except for the BCD, ordered the sentence duly executed.

9.  The U.S. Army Court of Military Review affirmed the findings and sentence in his case.

10.  There is no evidence he petitioned the U.S. Court of Military Appeals for a review of his case.

11.  He was discharged from active duty in pay grade E-1 on 27 December 1992, under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 3, section IV, as a result of a court-martial, and with a BCD.  He was credited with completion of 9 years, 7 months, and 15 days of active service and no lost time.

12.  Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214 lists the:

* Army Good Conduct Medal (2nd Award)
* National Defense Service Medal
* NCO Professional Development Ribbon with Numeral 2
* Army Service Ribbon
* Overseas Service Ribbon
* Army Lapel Button
* Marksman Marksmanship Qualification Badge with Rifle Bar (M-16)

13.  There is no evidence in his records or orders awarding him the Expert Field Medical Badge.

14.  In 25 September 1997, the Army Discharge Review Board (ADRB), advised him that his DD Form 293 had been received; however, because his records indicated that he was separated by reason of a general court-martial he should apply to the ABCMR.

15.  Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  Paragraph 3-11 stated 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.

16.  Army Regulation 635-200, paragraph 3-7a, provided an honorable discharge was a separation with honor and entitles the recipient to benefits provided by law.  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 clearly inappropriate.


17.  Army Regulation 635-200, paragraph 3-7b, provided a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

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 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.

19.  Army Regulation 600-8-22 (Military Awards) states award of the Expert Field Medical Badge requires that an individual must have satisfactorily completed the prescribed proficiency tests.  The basic eligibility criteria states enlisted personnel must have an Army Medical Department (AMEDD) primary MOS or an MOS of 18D.  Eligible personnel must be on active duty or assigned to a Reserve troop program unit or an AMEDD mobilization augmentation agency. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his discharge should be upgraded because the judge in his court-martial was racist towards minority service members, but he provides no evidence to support his contention.  The evidence of record shows he was convicted by a general court-martial of the wrongful use of cocaine; having sexual intercourse with two different women, both not his wife; and committing sodomy on one of them.  He was discharged on 27 December 1992 pursuant to the sentence of a general court-martial and he was issued a BCD.

2.  He has provided no evidence to show that his discharge is unjust.  There is no error or injustice apparent in his record.  There is also no evidence that his treatment during his court-martial was unjust or inequitable.  He has not provided sufficient evidence or argument to show his discharge should be upgraded to a general or fully honorable discharge.  He was properly discharged in accordance with pertinent regulations, with due process, with no violation of his rights.  

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 offenses 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.  With regard to his contention that he was awarded the Expert Field Medical Badge, the evidence of records shows he held an AMEDD primary MOS; however, the evidence does not confirm he successfully passed all test parts and was awarded the Expert Field Medical Badge.  Therefore, there is insufficient evidence on which to base adding the Expert Field Medical Badge to his           DD Form 214.  

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)                                         AR20100030208





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ABCMR Record of Proceedings (cont)                                         AR20100030208



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