IN THE CASE OF:	  

		BOARD DATE:	  11 August 2011

		DOCKET NUMBER:  AR20100030387 


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 his bad conduct discharge be changed to a medical discharge.

2.  The applicant states he was severely injured when he was pulled out of his bunk by a fellow Soldier.  He states he received an injury to his nervous system and vertebrae.

3.  The applicant provides no additional evidence in support of his application.

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.  He enlisted in the Regular Army on 15 August 1979 for a period of 3 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty 63C (Track Vehicle Mechanic).

3.  He had been receiving treatment for his left hip and lower back pain since November 1979 when he fell out of his bunk.  A Radiographic Report, dated 
12 December 1980, noted no significant abnormalities except for a small spina bifida at the level of L5 and the first sacral segment.

4.  He accepted nonjudicial punishment on:

* 8 May 1980 for failure to go at the time prescribed to his appointed place of duty
* 14 May 1980 for failure to go at the time prescribed to his appointed place of duty

5.  On 24 November 1980, he was tried before a special court-martial.  He pled not guilty but was found guilty of:

* being absent without leave (AWOL) from on or about 28 May to on or about 4 June 1980
* being AWOL from on or about 12 June to on or about 25 July 1980
* being AWOL from on or about 3 September to on or about 17 September 1980
* disobeying a lawful order from a noncommissioned officer

His sentence consisted of forfeiture of $300 a month for 6 months, confinement at hard labor for 5 months, and to be discharged from the service with a bad conduct discharge.

6.  On 6 February 1981, the convening authority approved the sentence.

7.  On 29 April 1981, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.  On 2 September 1981, his sentence to a bad conduct discharge was ordered executed.

8.  On 18 September 1981, he was discharged as a result of a court-martial with a bad conduct discharge.  He had completed 1 year, 5 months, and 12 days of active service.  He had 234 days of lost time.

9.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 13 May 1983, the ADRB reviewed and denied the applicant's request for upgrade.  The ADRB determined that the applicant's discharge was proper and equitable.  

10.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, and Separation), paragraph 4-1, states that a Soldier who is charged with an offense or is under investigation for an offense for which he could be dismissed or given a punitive discharge may not be referred for disability processing.  

11.  Army Regulation 635-200 (Personnel Separations), then in effect, set forth the basic authority for the separation of enlisted personnel.  Chapter 11 established policy and procedures for separating members with a dishonorable or bad conduct discharge and provided that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial and that the appellate review must be completed and affirmed sentence ordered duly executed.

12.  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.

DISCUSSION AND CONCLUSIONS:

1.  	The evidence shows the applicant's trial by court-martial was warranted by the gravity of the offenses for which he was charged.  The conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.
	
2.  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.

3.   At the time he was charged with an offense for which he could be given a punitive discharge he could not be referred for disability processing.  He was ultimately sentenced to a bad conduct discharge.  Therefore, he was not eligible for referral for disability processing.

4.  In view of the above, there is no basis for changing his bad conduct discharge to a medical discharge.

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)                                         AR20100030387





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ABCMR Record of Proceedings (cont)                                         AR20100030387



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