IN THE CASE OF:	  

		BOARD DATE:	  17 January 2013

		DOCKET NUMBER:  AR20120011856 


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 that her Bad Conduct Discharge (BCD) be set aside and that she be medically retired by reason of permanent disability, that she be paid the $500.00 per month for 6 months that was designated for her dependent in the court-martial order, and that her last Noncommissioned Officer Evaluation Report (NCOER) be removed from her official records.

2.  The applicant states, in effect, that she was unjustly court-martialed when she should have been processed for medical disability retirement due to her bipolar disorder, post-traumatic stress disorder, and postpartum depression.  She goes on to state that the financial support ordered set aside for her son in the court-martial order was never provided to her son and she desires the last NCOER removed from her official records.  

3.  The applicant provides an 8-page brief explaining her application, a copy of her DD Forms 214 (Certificate of Release or Discharge from Active Duty), a copy of her official photograph, documents related to her medical treatment, copies of emails, a chronological time sheet of an Article 32 investigation of the applicant, psychiatric evaluations, documents related to her court-martial and appeal, responses to congressional inquiries on the applicant’s behalf, Department of Veterans Affairs (VA) Rating Decisions and a letter from the Defense Finance and Accounting Service (DFAS) regarding her pay issue.



CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 27 May 1982 for a period of 3 years.  She completed her training and was advanced to the pay grade of E-4 on 1 June 1983.

2.  On 5 December 1983, she was retired and placed on the Temporary Disability Retired List (TDRL) due to bi-polar disorder after having served 1 year, 6 months, and 9 days of active service.

3.  On 25 September 1985, she was found fit for duty, was removed from the TDRL, and was returned to active duty on 4 November 1985.  She was promoted to the pay grade of E-5 on 17 November 1986 and to the pay grade of E-6 on    21 October 1988.

4.  On 19 March 1998, the applicant was convicted by a General Court-Martial of being absent without leave (AWOL) from 3 – 5 November 1997, disobeying a lawful command by not submitting to a urinalysis on 6 November 1997, and wrongfully using cocaine on 7 September 1997.  She was sentenced to confinement for 18 months, reduction to the pay grade of E-1 and a BCD.  However, the convening authority approved the sentence except for the part extending to the BCD until appellate review was conducted and directed that any part of the sentence extending to forfeitures of pay be waived in the amount of $500.00 per month for 6 months and that the monies be provided by allotment to her qualified dependent.  

5.  On 23 April 1998, the applicant received a change of rater NCOER covering the period 9709 – 9803.  In Part IVa, under Values/NCO Responsibilities, her rater gave her “NO” ratings in values 1 – 6 and commented that the applicant used poor judgment on and off duty by testing positive on a urinalysis.

6.  In Part IVb and IVd, the rater gave her “Needs Improvement” ratings under competence and leadership and indicated that her conduct was unbecoming a noncommissioned officer and that she disobeyed a lawful order. 

7.  In Part V, under Overall Performance and Potential, the rater gave her a “Marginal" rating under potential for promotion and the senior rater gave her a “Fair” rating for performance and a “Poor” rating for overall potential for promotion.

8.  There is no evidence in the available records to show that she ever appealed the NCOER to the Enlisted Special Review Board.
9.  On 21 June 1999, the United States Army Court of Criminal Appeals affirmed the findings and sentence as approved by the convening authority.  

10.  On 21 January 2000, the applicant was discharged pursuant to a duly reviewed and affirmed court-martial conviction.  She had served 15 years, 
3 months, and 12 days of total active service and had approximately 162 days of lost time due to AWOL and confinement.

11.  The letter from DFAS provided by the applicant indicates that upon reexamination of her military pay account it was determined that no forfeitures were ever posted to her pay account during her period of AWOL or the period she was in military confinement.  Accordingly, she was not entitled to a refund since no forfeitures occurred.   

12. The medical documents provided by the applicant show:

* She self-referred herself to the Fort Campbell Community Counseling Center for alcohol and drug abuse on 22 November 1996
* She was admitted to the residential substance abuse inpatient treatment center through the emergency room at Fort Gordon, Georgia on 
	2 December 1997 after a recent alcohol and cocaine binge while visiting a 	male friend in the Augusta area
* Psychiatric evaluation indicating that the applicant was hospitalized from 6-17 November 1997 at Fort Stewart, Georgia and was diagnosed as having bi-polar disorder, alcohol dependence, and cocaine dependence
* A 17 February 1998 Psycholegal Evaluation (Sanity Board) which essentially determined that she was mentally responsible, able to determine right from wrong and to adhere to the right
* Her psychiatric treatment as an inmate and recommendations for clemency 

13.  The VA Rating Decision provided by the applicant shows that she has been granted a combined  80% service connected disability rating for bipolar disorder, low back strain, and history of left knee injury.

14.  Title 10, U.S. Code, section 1552, the authority under which this Board acts, provides, in part, that the Board 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. 

15. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 3-2b, provides that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.

16.  Title 38, U.S. Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

17.  There is a difference between the VA and the Army disability systems.  The Army’s determination of a Soldier’s physical fitness or unfitness is a factual finding based upon the individual’s ability to perform the duties of his or her grade, rank or rating.  If the Soldier is found to be physically unfit, a disability rating is awarded by the Army and is permanent in nature.  The Army system requires that the Soldier only be rated as the condition(s) exist(s) at the time of the Physical Evaluation Board (PEB) hearing.  The VA may find a Soldier unfit by reason of service-connected disability and may even initially assign a higher rating.  The VA’s ratings are based upon an individual’s ability to gain employment as a civilian and may fluctuate within a period of time depending on the changes in the disability.

18.  Army Regulation 623-3 (Evaluation Reporting System) prescribes the policy for completing evaluation reports and associated support forms that are the basis for the Army's Evaluation Reporting System.  It states that an evaluation report accepted by Headquarters, Department of the Army and included in the official record of a rated Soldier is presumed to be administratively correct, have been prepared by the properly-designated rating officials, and represent the considered opinions and objective judgment of the rating officials at the time of preparation.  Requests that an evaluation report in a Soldier's Army Military Human Resource Record be altered, withdrawn, or replaced with another report will not be honored.  The regulation also states the burden of proof rests with the applicant.  Accordingly, to justify deletion or amendment of a report, the applicant will produce evidence that clearly and convincingly establishes that the regulatory presumption of regularity referred to in paragraphs 3-39 and 6-7 of this regulation will not be applied to the report under consideration and action is warranted to correct a material error, inaccuracy, or injustice.
    
DISCUSSION AND CONCLUSIONS:

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

2.  Accordingly, the type of discharge directed and the reasons therefore appear to be appropriate, considering the available facts of the case.

3.  The applicant’s contentions and supporting documents have been noted; however, there is insufficient evidence to warrant an upgrade of her discharge when considering the serious nature of her offenses.

4.  Additionally, the applicant has failed to show sufficient evidence to establish that her medical condition at the time was the resultant cause of her misconduct and that she should have been processed for separation under the PDES.  A review of her records fails to show that she was unfit due to a compensable medical disability at the time of separation.

5.  The applicant has also failed to show through the evidence of record and the evidence submitted with her application that the contested NCOER is not a valid appraisal by her rating officials of her potential and performance during the rated period.  Accordingly, there is no basis to remove it from her records.

6.  The applicant’s contention that she is owed $500.00 a month for 6 months as indicated in her court-martial order because it was never paid to her son has been considered and appears to lack merit.

7.  While it is noted that the convening authority indicated that $500.00 of any forfeitures imposed were to be withheld and sent to the guardian of the applicant’s son, in fact, her sentence did not impose any forfeitures of pay and allowances so there were no forfeitures to apply the convening authority's directive to.  Accordingly, the applicant’s pay continued to be made through direct deposit to her account.  Furthermore, the applicant has provided no evidence to show that she did not receive all of her due pay and allowances.  Accordingly, there is no basis to grant her request in that matter. 

8.  Accordingly, there appears to be no basis for clemency in her case or an upgrade of her discharge, retirement by reason of permanent disability, removal of her last NCOER, or payment of any forfeitures of pay.
 
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)                                         AR20120011856





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ABCMR Record of Proceedings (cont)                                         AR20120011856



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