IN THE CASE OF: 

		BOARD DATE:    29 January 2013

		DOCKET NUMBER:  AR20120012372


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 upgrade of his bad conduct discharge to an honorable discharge.

2.  The applicant states:

* he sustained life-threatening injuries during an airplane crash disaster at Pope Air Force Base, NC, on 23 March 1994
* his leg was nearly severed and he received massive burns, a disfigured hand, and post-traumatic stress disorder (PTSD)
* he had previously enjoyed the Army and his record reflects that fact – he was a model noncommissioned officer in charge (NCOIC)
* after the plane crash, he was different but he did not realize it
* because of his broken body, and the length of his hospitalization, he was determined to be non-deployable – this caused him to feel very unsure of himself, fearful, filled with anxiety and depression

3.  The applicant provides extensive documentation, listed in chronological order by date of occurrence:

* volumes of medical documentation (consisting of treatment summaries, reports, consultation records, operative reports, progress notes, etc.), that detail his initial medical treatment for wounds he sustained in an airplane crash disaster at Pope Air Force Base on 23 March 1994
* medical evaluation board (MEB) report (addendum to a 22 June 1995 MEB report)
* examination and radiology reports from Wake Orthopaedics, Raleigh, NC, dated 4 August 2011
* an examination report from Blackshear & Blackshear Psychological Services, Raleigh, dated 11 October 2011
* a letter from Doctor (Dr.) S----- K----, MD, from Cape Fear Orthopedics, Fayetteville, NC, dated 29 March 2012
* a detailed history from the U.S. Army Center for Military History, entitled "The Heroes of Green Ramp," that details the 23 March 1994 airplane crash history at Pope Air Force Base
* an internet article from Wikipedia.com, entitled "Ramp Disaster"

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 enlisted in the Regular Army on 2 August 1977.  His record shows he held military occupational specialty 44E (Machinist).  He served in a variety of stateside and overseas assignments and attained the rank/grade of sergeant first class (SFC)/E-7.

3.  On or about 10 December 1982, following an overseas assignment in Germany, he was assigned to Headquarters and Headquarters Company (HHC), 548th Engineer Battalion, Fort Bragg, NC.  On or about 7 February 1992, he was reassigned to HHC, 2nd Battalion, 504th Parachute Infantry Regiment, 82nd Airborne Division, Fort Bragg.

4.  On 23 March 1994, he and his battalion were involved in an airplane crash disaster at Pope Air Force Base, adjacent to Fort Bragg, which resulted in over 100 casualties and 24 fatalities.  The applicant was medically evacuated to Womack Army Hospital at Fort Bragg and he was later transferred to Walter Reed Army Medical Center, Washington, DC, for continued treatment and rehabilitation.  His medical records are unavailable for review.  While his exact period of hospitalization is unclear, certain medical documents allude to it exceeding 1 year.  Following his period of hospitalization, he returned to duty at Fort Bragg.

5.  On or about 6 November 1996, his unit reported him absent without leave (AWOL).  He remained AWOL until he was apprehended and returned to military control on or about 30 April 1999.

6.  On 11 January 2000, before a general court-martial at Fort Bragg, he was convicted of:

	a.  one specification of violating Article 86 of the Uniform Code of Military Justice (UCMJ) for being AWOL from on or about 6 November 1996 to on or about 30 April 1999;

	b.  three specifications of violating Article 107 of the UCMJ by making false official statements on or about 29 April 1999; and

	c.  one specification of violating Article 121 of the UCMJ for the larceny of money and military property, of a value of more than $100.00 on divers occasions, between on or about 6 November 1996 and on or about 1 March 1999.

7.  General Court-Martial Order Number 15, issued by Headquarters, XVIII Airborne Corps, Fort Bragg, dated 17 April 2000, shows the court sentenced him to reduction to the rank/grade of private (PV1)/E-1, forfeiture of all pay and allowances, and discharge from the Army with a bad conduct discharge.  The convening authority approved his sentence of reduction to the rank/grade of PV1/E-1, forfeiture of $670.00 pay per month for 4 months, and a bad conduct discharge, and except for the portion pertaining to his bad conduct discharge, ordered it duly executed.

8.  On 13 February 2001, the U.S. Army Court of Criminal Appeals affirmed the approved findings of guilty and the sentence in his court-martial.  The U.S. Court of Military Appeals denied his petition for review.

9.  General Court-Martial Order Number 142, issued by Headquarters,
U.S. Army Armor Center, Fort Knox, KY, dated 21 June 2001, shows that after completion of all required post-trial and appellate reviews, the bad conduct discharge, as ordered by General Court-Martial Order Number 15, issued by Headquarters, XVIII Airborne Corps, Fort Bragg, dated 17 April 2000, was ordered duly executed.

10.  On 7 December 2001, he was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 3, as a result of court-martial with a bad conduct discharge.  He completed 19 years, 3 months, and 4 days of net active service during this period of enlistment.

11.  His physical and mental condition at the time of his discharge is unclear.  His record is void of documentation that shows he underwent a separation physical examination, or that shows he was diagnosed with PTSD during his period of military service.

12.  He provides volumes of medical documentation that detail his initial medical treatment for wounds he sustained in an airplane crash disaster at Pope Air Force Base on 23 March 1994.  These documents address the severity of his injuries at the time they occurred; however, an MEB report, dated 22 June 1995, that addressed his fitness for duty following his treatment for his left arm injuries, found him fit for duty with permanent profile limitations.  An MEB report concerning his fitness for duty, relative to his lower extremity injuries, is not available for review.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	b.  Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

	c.  Paragraph 3-10 prescribes the policies and procedures for separating members with a dishonorable or a bad conduct discharge.  It provides that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

14.  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 applicant contends his bad conduct discharge should be upgraded to an honorable discharge based on his otherwise honorable service and the severity of the injuries he sustained on 23 March 1994.  

2.  The severity of his injuries is acknowledged; however, it appears, based on medical documentation he submitted, he recovered sufficiently to warrant retention on active duty with assignment limitations.  This is underscored by his return to duty at Fort Bragg in 1995.  Neither his available record, nor any documentation submitted by the applicant, addresses his reasons for going AWOL.

3.  The applicant was given a bad conduct discharge pursuant to an approved sentence by a general court-martial that was warranted by the gravity of the offense charged at the time.  His conviction and discharge were effected in accordance with applicable laws and regulations and his discharge appropriately characterizes the misconduct for which he was convicted.  The appellate review was completed and the affirmed sentence ordered duly executed.

4.  All requirements of law and regulation were met and his rights were fully protected.  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.  

5.  In view of the foregoing, there is insufficient evidentiary basis for granting the applicant's 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)                                         AR20090019040



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120012372



6


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1