BOARD DATE:	  14 July 2011

		DOCKET NUMBER:  AR20110001488 


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 records to show he was medically discharged.  He also requests a personal hearing.

2.  The applicant states the Department of Veterans Affairs (VA) has diagnosed and awarded him a 30% service-connected disability for injuries to his left shoulder, left leg, and lower back.  The Army had given him a psychological evaluation around April 1995 that showed he was suffering from post-traumatic stress disorder (PTSD) and a series of other afflictions.  These ailments have caused his nightmares, flashbacks, and anxiety.  The Army failed to take these issues into considering during his general court-martial and expecting that his issues would simply go away by denying him access to his medical and psychological issues.  

3.  He also states he has been trying to obtain copies of his medical records for many years not only to dispute his discharge but to also seek treatment.  He does not have documents to support his request because the military, Army and Marines have denied him access to his records.  He adds that he learned that his defense attorney may have had inappropriate contact with his chain of command at the time and may have advised him incorrectly.  He also believes there may have been some coercion on behalf of the U.S. Army Criminal Investigation Command in obtaining his confession and his mental condition at the time of his confession.  He was never read his rights until a week after he confessed.  He also did not have an attorney during the interrogation process.  The entire court-martial that lasted less than 24 hours was nothing more than to clear up a case.  After all, how could a man with dark hair be convicted with a crime wherein the suspect was described as having blonde hair?  Finally, he would like to appear before the Board because he has a lot of information but he is currently incarcerated.  He recommends the Board conduct a teleconference with him or conduct a visit.

4.  The applicant did not provide any evidence. 

CONSIDERATION OF EVIDENCE:

1.  Having had prior service in the U.S. Marine Corps, the applicant's records show he enlisted in the Regular Army for 3 years on 30 June 1993 and held military occupational specialty 11C (Indirect Fire Infantryman).  He completed 6 months and 22 days of foreign service and attained the rank/grade of specialist/E-4.  He was assigned to Fort Carson, CO.

2.  On 6 July 1995, he was temporarily released from the custody of a civilian district court in Colorado to military authorities for prosecution by a court-martial with a stipulation the Army would return him to the civilian court after his military sentencing to await his trial by the civilian court. 

3.  On 7 July 1995, he pled guilty at a general court-martial to one specification of rape and one specification of larceny.  The court found him guilty in accordance with his pleas and sentenced him to a dishonorable discharge, confinement for life, and a reduction to the lowest enlisted grade.

4.  On 19 September 1995, the convening authority approved the sentence but suspended the portion of the sentence adjudging confinement in excess of 27 years for a period of 27 years.  Furthermore, the execution of the sentence adjudging confinement was ordered postponed effective the date of this action until the applicant was permanently released to the Armed Forces.  The applicant was credited with 106 days of pretrial confinement and 74 days of post trial confinement.  Additionally, except for that part of the sentence extending to the dishonorable discharge, the convening authority ordered it executed and the record of trial was forwarded to The Judge Advocate General of the Army for appellate review.

5.  On 28 September 1995, he was convicted by civilian court in Colorado of kidnapping and sentenced to 35 years imprisonment. 

6.  On 14 November 1995, the U.S. Army Court of Criminal Appeals affirmed the findings of guilty and the sentence, and on 18 December 1996, the U.S. Court of Appeals for the Armed Forces denied his petition for review. 

7.  Headquarters, U.S. Army Field Artillery Center and Fort Sill, Fort Sill, OK, General Court-Martial Order Number 224, dated 18 September 1997, shows that, after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's dishonorable discharge sentence executed.

8.  He was discharged from the Army on 10 October 1997.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged in accordance with chapter 3 of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) as a result of court-martial with issuance of a Dishonorable Discharge Certificate.  This document further shows he completed a total of 1 year, 3 months, and 20 days of total active service with 1,071 days of time lost.

9.  His medical records are not available for review with this case.  His available official records do not reflect he was diagnosed with PTSD or any medical condition during his military service.

10.  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.

11.  Army Regulation 15-185 (ABCMR) provides Department of the Army policy, criteria, and administrative instructions regarding an applicant’s request for the correction of a military record.  The ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  Applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

12.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states, in pertinent part, 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.


DISCUSSION AND CONCLUSIONS:

1.  With respect to the personal hearing, by regulation, an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, the evidence of record and independent argument provided by the applicant is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.

2.  He was given a dishonorable discharge pursuant to an approved sentence of a general court-martial, which was warranted by the gravity of the offenses charged at the time.  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.

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 undistinguished record of service and absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  

4.  With respect to his medical records, the ABCMR corrects records; it is not a repository for medical or any type of records.  The ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

5.  With respect to his contention for a medical discharge, by regulation, 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.  Since the applicant was convicted by a general court-martial for rape and larceny, he was ineligible to enter the Army disability evaluation system and could not have received a medical discharge.

6.  In view of the foregoing evidence, he is not entitled to 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)                                         AR20110001488



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ABCMR Record of Proceedings (cont)                                         AR20110001488



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