IN THE CASE OF:	  

		BOARD DATE:	  12 June 2012

		DOCKET NUMBER:  AR20110020577 


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:

* to be compensated $2,000.00 per day for the 18 months he was wrongfully held in military confinement
* a disability rating of 100 percent for post-traumatic stress disorder-military sexual trauma (PTSD-MST) resulting from mental torture while in military confinement
* correction of his record to reflect he held the rank and pay grade of specialist (SPC)/E-4 during the period of his confinement
* receipt of back pay for the rank and pay grade of staff sergeant (SSG)/
E-6, the rank he would have reached had he not been confined
* amendment of his reentry eligibility (RE) code to a more favorable code

2.  The applicant states he was sentenced to 30 days in military confinement and he was wrongfully held in confinement for 18 months.  He contends that the court-martial records show another Soldier testified the applicant had no knowledge of the events and was not present when the Soldier was arrested.  The charges were dismissed, but he was still held in confinement for 18 months.  This injustice ruined his career and caused him deep depression.

3.  The applicant provides:

* Record of Trial compact disc
* DD Form 214 (Certificate of Release or Discharge from Active Duty)


* Mental Health Outpatient Progress Notes, dated 19 December 2006
* Department of Veterans Affairs Medical Center prescription printout, dated 4 April 2011
* self-authored statement
* excerpt of Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR))

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 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 enlisted in the Regular Army on 25 October 1978.  He held military occupational specialty 76P (Materiel Control and Accounting Specialist).

3.  Special Court-Martial Order Number 54 issued by Headquarters, VII Corps, Germany, dated 27 August 1981, shows he was initially charged with the following violations of the Uniform Code of Military Justice (UCMJ):

* charge I – one specification of larceny of $25.00, the property of the U.S. Government, by selling foot powder as heroin on or about 14 December 1980
* charge II – one specification of failing to go at the time prescribed to his appointed place of duty on or about 31 January 1981
* charge III – one specification of stealing $25.00, the property of the U.S. Government, on or about 14 December 1980

4.  He pled guilty to charges I and III and not guilty to charge II.  Prior to the findings, the military judge dismissed charge II and its specification on motion by the defense counsel and renumbered charge III to charge II.

5.  He was sentenced to a bad conduct discharge, reduction to private/E-1, and confinement at hard labor for 1 month.  The sentence was adjudged on 6 April 1981.

6.  Orders 28-5 issued by the U.S. Army Confinement Facility, Mannheim, Germany, dated 14 April 1981, reassigned him to the U.S. Army Personnel Control Facility (USAPCF), Fort Dix, NJ, with a reporting date of 16 April 1981.

7.  Orders 120-81 issued by the U.S. Army Training Center and Fort Dix further reassigned the applicant to the USAPCF, Fort Bragg, NC, effective 30 April 1981 with a reporting date of 3 May 1981.  The additional instructions read, in part:

	a.  "Service Member (SM) presently at holding area, this station, returned to duty from confinement and reassigned as directed on effective date.  Pending completion of appellate review and execution of bad conduct discharge"; and

	b.  "SM for duty as commanding officer may direct."

8.  His DA Form 2-2 (Record of Court-Martial Conviction) shows his sentence was approved on 27 August 1981.  Item 5a (Modification, Suspension, or Setting Aside of Trial Results) contains the entry "By action of the U.S. Army Court of Military Review the sentence was reassessed and the court affirmed only so much of sentence as provides for confinement at hard labor for 1 month and reduction to the grade of private/E-1."

9.  His DA Form 2-1 (Personnel Qualification Record) prepared on 24 November 1981 shows in item 35 (Current and Previous Assignments):

* 3 May-28 November 1981 – USAPCF, Fort Bragg, NC – duties as assigned
* 29 November 1981 – absent without leave (AWOL)
* 30 November-8 December 1981 – USAPCF, Fort Bragg, NC – duties as assigned
* 9 December 1981 – AWOL
* 10 December-23 December 1981 – USAPCF, Fort Bragg, NC – duties as assigned
* 24 December-27 December 1981 – AWOL
* 28 December 1981-11 January 1982 – USAPCF, Fort Bragg, NC – duties as assigned
* 12 January-13 January 1982 – AWOL
* 14 January-21 April 1982 – USAPCF, Fort Bragg, NC – duties as assigned
* 22 April 1982 – attached to the 364th Supply and Service Company – duties as assigned



10.  His record contains several DA Forms 4187 (Personnel Action) which show that between 29 November 1981 and 14 January 1982 his duty status changed from present for duty to AWOL on four separate occasions while assigned to the USAPCF, Fort Bragg, NC.

11.  On 16 July 1982, he requested excess leave while awaiting the appellate review on the execution of his punitive discharge and his request was approved on 27 July 1982.

12.  A review of the record of trial provided by the applicant summarily shows:

	a.  An Assignment of Error and Brief on behalf the applicant stated his pleas to charges I and III (previously renumbered as I and II) were changed from guilty to not guilty by the military judge during the providence inquiry.

	b.  The statement of facts argued the convening authority took action on applicant's case on 27 August 1981, 142 days after the trial.  Further, there was no indication of any reason in the record of trial for the extensive delay in the post-trial processing of this case.  He requested his bad conduct discharge be set aside.

	c.  On 19 August 1982, the U.S. Army Court of Military Review stated that "although appellant was released from confinement and returned to duty status within a month of trial, it nevertheless behooved the command to diligently and expeditiously process all records."  The findings of guilty were affirmed, but due to the Staff Judge Advocate's failure to include significant clemency matters in the post-trial review presented to the convening authority, the court only affirmed so much of the sentence as provided for confinement at hard labor for 1 month and reduction to the rank/pay grade of private/E-1.  On 13 September 1982, he acknowledged receipt of the decision noted above.

13.  He was honorably released from active duty under the provisions of Army Regulation 635-200 (Enlisted Separations), chapter 2, due to completion of required service in pay grade E-1 on 24 September 1982 and transferred to the U.S. Army Reserve Control Group (Reinforcement).  He was credited with 3 years, 9 months, and 22 days of net active service.  His dates of lost time are listed as:

* 27 August-26 September 1981
* 29 November 1981
* 9 December 1981
* 24 December-27 December 1981
* 12 January-13 January 1984

14.  Item 26 (Separation Code) of his DD Form 214 shows he was assigned a separation program designator (SPD) code of LBK and item 27 (Reentry Code) shows he was assigned RE codes of 3, 3B, and 3C.

15.  He provides two separate statements.  In the first statement he contends:

* he was wrongfully sentenced to a bad conduct discharge by a summary court-martial which cannot be done under the UCMJ
* he was sentenced to 30 days in confinement but was retained for close to 2 years
* the Soldier who committed the offense only received a 60-day confinement
* his safety as a Soldier was always an issue and he was forced to fight for his life
* he was diagnosed with PTSD-MST in 2000

16.  In his second statement, he contends that around April 1980 while he was assigned to Augsburg, Germany, he and another Soldier went to Munich, Germany, for the weekend.  They went to a club frequented by mostly U.S. Soldiers and he ended up leaving with a female and spending the weekend with her.  In order to get money to get home, the other Soldier sold foot powder that was supposed to be heroin to a Criminal Investigation Command (CID) agent and was arrested.  When the applicant returned to his unit on Monday morning he was arrested, charged with conspiracy to commit the same crime, and advised he would go before a summary court-martial.  His appointed counsel did not advise him of any of his rights but because he was only 19 years old he did not think there was anything seriously wrong.  On the advice of counsel, he did not make any statements on his behalf during his court appearance.  He was found guilty based on testimony from the CID agent and a witness who placed him at the club that night.  He was sentenced to 30 days in confinement, reduction to private, and a bad conduct discharge.

17.  He further contends he spent 30 days confined in Mannheim, Germany, then was transferred to the United States and confined in a Navy Brig in Philadelphia, PA.  Then he was shipped to Fort Dix, NJ, and confined for approximately 2 weeks, finally arriving in USAPCF, Fort Bragg, NC, to await the final outcome of his case.  He was placed in an open bay with no charge of quarters or night watch.  He alleges he was attacked and raped on the second day by four other inmates.  He reported the incident to his chain of command but no action was taken.  He remained at this location for about 18 months.

18.  He was in constant fear for his safety and began to fight anyone he thought was involved in his attack.  He placed rocks next to his bed and carried a knife or a weapon to protect himself.  He was humiliated, treated badly, beaten, and became a wild animal.  He was AWOL on two occasions because no one believed him.  He was held 249 days past his expiration of term of service and his experience still causes him nightmares and makes it difficult to develop relationships.  He has been confined 15 times since his release from the military.  He was diagnosed with depression and PTSD-MST.  He was issued an honorable discharge, but he did not receive a medical evaluation.  The injustice continues to haunt him every day and it caused him not to believe in himself or trust other people to do the right thing.

19.  He provides his post-service medical treatment records for the period 2003-2007 which show he was diagnosed with PTSD-MST along with other medical conditions.

20.  His active duty medical records are not available for review and the available personnel records do not contain a separation physical or mental evaluation.

21.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a medical evaluation board (MEB).  Those members who do not meet medical retention standards will be referred to a physical evaluation board (PEB) for a determination of whether they are able to perform the duties of their grade and military specialty with the medically-disqualifying condition.

22.  Army Regulation 635-40, paragraph 2-2b(1), in effect at the time, provided that when a member was separated by reasons other than physical disability, his/her continued performance of assigned duty appropriate with his/her rank or grade until he/she was scheduled for separation or retirement created a presumption that he/she was fit.  This presumption could be overcome only by clear and convincing evidence that he/she was unable to perform his/her duties for a period of time or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

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

24.  Army Regulation 635-5-1 (SPD Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPD codes to be used for these stated reasons.  The regulation, in effect at the time, shows that the SPD code "LBK" as shown on his DD Form 214 specifies the narrative reason for separation as involuntary release or transfer for "expiration of term of service" and the authority for separation under this SPD is "Army Regulation 635-200, chapter 2."  Additionally, the SPD/RE Code Cross Reference Table establishes RE code 1 as the proper RE code to assign to Soldiers separated for this reason.

25.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army, U.S. Army Reserve, and Army National Guard and includes a list of Armed Forces RE codes.

	a.  RE-1 applies to individuals completing their terms of active service who are considered qualified to reenter the U.S. Army.  They are qualified for enlistment if all other criteria are met;

	b.  RE-3 applies to those individuals who are not qualified for reenlistment, but their disqualifications are waivable;

	c.  RE-3B applies to those individuals who had lost time during their last period of service.  They are considered ineligible for enlistment unless a waiver is granted; and

	d.  RE-3C applies to individuals who have completed over 4 months of service who do meet the basic eligibility pay grade requirements of chapter 2, Army Regulation 601-280, or who have been denied reenlistment under the Qualitative Retention Process pursuant to chapter 4, Army Regulation 600-200.  They are considered ineligible for enlistment unless a waiver is granted.

26.  Title 10, U.S. Code, section 1556, permits the Secretary concerned to pay claims for the loss of pay, allowances, compensation, emoluments, or other pecuniary benefits, or the repayment of a fine or forfeiture, if as a result of correcting the record the amount is found to be due the claimant.

27.  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 court-martial 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.

28.  Title 31, U.S. Code, section 3702, prohibits the payment of a claim against the government unless the claim has been received by the Comptroller General 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, U.S. Code, 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 contends he was wrongfully sentenced to a bad conduct discharge by a summary court-martial.  The charges were eventually dismissed.  However, the record clearly shows he was convicted by a special court-martial of larceny and stealing government property.  He was sentenced to 30 days at hard labor, reduction to private/E-1, and a bad conduct discharge.  An appellate review determined that error occurred in the post-trial processing of his case.  The findings of guilty were affirmed.  However, the court only affirmed so much of the sentence as provided for confinement at hard labor for 1 month and reduction to the grade of private/E-1.

3.  Further, he contends he was held in confinement for 18 months past the termination of his 30-day sentence.  However, based upon a preponderance of the evidence, it appears that after he completed his confinement he remained assigned to the USAPCF while awaiting the final disposition of case.  The available evidence shows his sentence was approved on 27 August 1981 and his DD Form 214 shows the period from 27 August to 26 September 1981 as lost time.  Consequently, it can be presumed that this was the time he spent in confinement.  In addition, his duty status was changed from present for duty to AWOL on four occasions between 29 November 1981 and 14 January 1982, which clearly demonstrates he was assigned to the organization and not being held in confinement.  Lacking evidence to the contrary, he is not authorized $2,000.00 per day in compensation, to have his record reflect the rank and pay grade of SPC/E-4, or to be promoted to the rank and pay grade of SSG/E-6.

4.  In regard to his request for a disability rating of 100 percent for PTSD-MST resulting from his mental torture and rape while in military confinement, he submitted post-service medical records which show he received outpatient treatment for several conditions, one of which is PTSD-MST.  Although he was diagnosed with PTSD-MST, that diagnosis alone does not signify he was unfit for military service.  His official medical records are not available.  He did not provide sufficient evidence to show his PTSD-MST, along with his other medical conditions, warranted consideration by an MEB or a PEB.

5.  The severity of his medical conditions and the impact they have had on his professional and personal life are not in question.  However, in order to receive a physical disability rating of 100 percent, a member must have at least 20 years of active service or be rated by a PEB.

6.  He was released from active duty on 24 September 1982 under the provisions of Army Regulation 635-200, chapter 2, at his expiration of term of service.  He held the rank of private/E-1 at the time of his separation.  His DD Form 214 shows he was assigned an SPD code of LBK (involuntary separation/expiration of term of service) and RE codes of 3, 3B, and 3C.  The RE code 3 indicates he was ineligible for reenlistment based on his previous court-martial conviction, 3B applies to members with lost time, and RE code 3C is assigned to a member who has completed over 4 months of active service.  His RE codes are correctly shown on his DD Form 214.

7.  In view of the above, his request should be denied.

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)                                         AR20110020577



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ABCMR Record of Proceedings (cont)                                         AR20110020577



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