BOARD DATE:	  12 June 2012

		DOCKET NUMBER:  AR20110024271 


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 overturning the guilty finding of his court-martial.

2.  The applicant states he had been diagnosed with various ailments including post-traumatic stress disorder triggered by pre-war combat exercises, flat feet, back pain, blurred perception due to medication, side effects of medication, and he had a physical profile.  Although he was convicted by a court-martial, he only disobeyed orders due to his medical conditions which prevented him from carrying out the orders.  Additionally, he thinks his defense counsel failed to mention the medical issues and, as such, was negligent.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* hospital operative report
* Standard Form 600 (Chronological Record of Medical Care)
* Standard Form 88 (Report of Medical Examination)
* DD Form 458 (Charge Sheet)
* photograph

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 records show he enlisted in the Regular Army on 22 January 1988.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 76P (Materiel Control Specialist).

3.  Subsequent to completion of MOS training, he was reassigned to Germany on or about 10 June 1988.  He was assigned to Company B, 208th Support Battalion.

4.  It appears he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on:

* 15 August 1988, for disorderly conduct
* 2 September 1988, for violating multiple articles of the UCMJ, including failing to repair, disobeying a lawful order, malingering, communicating a threat, assault, and other infractions

5.  On 21 September 1988, he was placed in pre-trial confinement.  His commander stated the applicant refused to respect military authority.  If ordered to a trial hearing, he would disobey the order.  He continued to refuse to obey orders and perform extra duty punishment imposed under Article 15 of the UCMJ.  His refusal posed a serious threat to the effectiveness, morale, and discipline of the command.  Other Soldiers in the unit were aware that he had "quit" and would be encouraged to do the same.  Repeated punishment measures had been imposed and ignored by the applicant.  He refused to acknowledge orders of any superior officers or noncommissioned officers.

6.  On 27 October 1988, he was convicted by a special court-martial of three specifications of disobeying lawful orders.  The court sentenced him to a bad conduct discharge, confinement for 70 days, and forfeiture of $447.00 pay per month for 2 months.

7.  On 4 January 1989, the convening authority approved the sentence and, except for the bad conduct discharge, 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.

8.  Headquarters, U.S. Army Field Artillery Center, Fort Sill, OK, Special Court-Martial Order Number 61, dated 7 December 1989, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's bad conduct discharge sentence executed.

9.  He was discharged from the Army on 11 January 1990.  His DD Form 214 shows he was discharged as a result of court-martial with a bad conduct character of service in accordance with Special Court-Martial Order Number 61.  This form further shows he completed a total of 1 year, 9 months, and 24 days of creditable military service with lost time from 21 September to 16 December 1988.

10.  He submits various records of medical care that show he was seen for multiple maladies including bilateral foot pain and/or fallen arches, back pain, and a fractured jaw.  He also submits a copy of his separation physical which noted some of the above maladies but otherwise showed he was medically qualified for separation.

11.  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 of record shows the applicant's trial by special court-martial was warranted by the gravity of the offenses charged.  His conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterized the misconduct for which he was convicted.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

2.  The ABCMR does not reexamine issues of guilt or innocence under a court-martial.  This is the convening authority's and appellate court's function and it cannot be upset by the ABCMR.  Furthermore, the applicant's case has already been adjudicated through the Army's legal system and the applicant's medical issues were addressed or could have been addressed during the court-martial and/or appellate process.  Only after all required post-trial and appellate reviews were completed did the convening authority order the applicant's bad conduct discharge sentence executed.

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)                                         AR20110024271



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ABCMR Record of Proceedings (cont)                                         AR20110024271



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