IN THE CASE OF:	  

		BOARD DATE:	    15 October 2013

		DOCKET NUMBER:  AR20130001887 


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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests an upgrade of the applicant's:

* bad conduct discharge (BCD) to an honorable discharge
* narrative reason for separation
* reentry (RE) code of "4" to "1"

2.  Counsel states:

   a.  The request is based on propriety and equity.  Counsel submits statements of facts in chronological order for the period February 2001 through 31 August 2011.
   
   b.  Counsel states the applicant maintained contact with his unit while he was receiving medical testing.  Further, the applicant contacted Fort Shelby and:
   
* advised officials he was instructed to report to the cardiologist at the medical center for testing
* he was told he did not have to worry about reporting to Camp Shelby while undergoing testing because he could be tracked in the Army Medical Protection System
* he was told that he would receive new orders and that he should not travel under expired orders due to possible legal issues if he were to be involved in an accident
* while waiting for new orders, he continued to report to the training facility
* he remained idle rather than proactively and continually inquiring about his new orders to Camp Shelby 
   
   c.  Counsel submits arguments and states the applicant has been the subject of a gross injustice and portrayed as an individual who had no loyalty to the Army and was trying to shirk his responsibilities.  The applicant was also the victim of poor legal advice.  His attorneys at the time were either negligent in handling his case or they provided incompetent legal advice.
   
   e.  Counsel concludes medical issues caused the applicant to miss his initial report date to Camp Shelby, MO.  The facts of the applicant's case do not align with the harsh and inequitable treatment that the applicant has suffered. 

	e.  The applicant is deserving of a discharge upgrade because the punishment that he received compared to his actions and inactions offends one's sense of justice and it is clear that the Army made an error regarding the applicant.

3.  Counsel provides a 10-page brief with 30 exhibits.

CONSIDERATION OF EVIDENCE:

1.  On 6 February 2001, the applicant enlisted in the Regular Army.  He completed training and was awarded military occupational specialty 25P (Microwave Systems Operator-Maintainer).

2.  On 5 February 2006, he was honorably released from active duty and transferred to Individual Ready Reserve.

3.  Orders Number M-04-700536, issued by U.S. Army Human Resources Command (HRC), St. Louis, MO, dated 30 April 2007, ordered the applicant to active duty with reporting to Fort Jackson, SC, no later than 3 June 2007.

4.  Orders Number M-04-700536A10, issued by HRC, dated 31 January 2008, amended Orders Number M-04-700536 and changed the applicant's reporting date to 6 April 2008.

5.  Orders Number 109-86, issued by Headquarters, U.S. Army Basic Combat Training Center of Excellence, Fort Jackson, SC, dated 19 April 2008, reassigned the applicant to a mobility station at Fort Gordon, GA, with a reporting date of 18 April 2008.

6.  Orders Number C-04-807818, issued by HRC, dated 24 April 2008, reassigned the applicant to Company C, 324th Signal Battalion, Fort Gordon, GA, with an effective date of 22 April 2008.

7.  Orders Number 116-501, issued by Headquarters, U.S. Army Signal Center and Fort Gordon, GA, dated 25 April 2008, directed the applicant to Camp Shelby, MS, with a reporting date of 11 May 2008.

8.  A Standard Form (SF) 600 (Chronological Record of Medical Care), dated 21 May 2008, shows the applicant was seen as an outpatient in the cardiology clinic, Dwight D. Eisenhower Army Medical Center (DDEAMC), Fort Gordon, GA, after being referred by an emergency room doctor.  The applicant was directed to follow up as needed in 1 week with his primary care manager (PCM) or sooner if he had problems.

9.  On 29 May 2008, the applicant was given an echocardiogram at the DDEAMC.  He was released without limitations and directed to follow up with his PCM as needed.

10.  On 2 June 2008, the applicant was seen as an outpatient at the cardiology clinic at the DDEAMC.  On 18 June 2008, he was given a cardiovascular stress test, released without limitations, and directed to follow up with PCM.

11.  On 4 June 2008, the applicant was seen as an outpatient at the DDEAMC.  He was given a 24-hour Holter monitor (electrocardiogram).

12.  On 29 October 2008, the applicant was seen as an outpatient at the Connelly Health Clinic of the DDEAMC for shoulder pain.  He was released without limitations and referred to physical therapy.

13.  On 25 November 2008, the applicant was seen as an outpatient at the DDEAMC in a follow up visit for his shoulder pain.  He was released with work/duty limitations and scheduled to return in 1 week after his magnetic resonance imaging (MRI) testing.


14.  On 8 December 2008, the applicant was seen as an outpatient at the DDEAMC for joint pain, localized in the shoulder.  He was prescribed 6 weeks of  physical therapy and the results of his MRI showed:

* Hill-Sachs deformity with humeral head bony contusion
* an associated anterior/inferior Bankhardt lesion with degenerative cyst formation
* anterior/inferior labral tear overlying the bony Bankhardt lesion with an additional posterior superior labral tear 
* tendinosis of the intra-articular aspect of the long head of the biceps tendon
* supraspinatus tendinosis

15.  Medical records provided by counsel show the applicant had follow-up appointments through March 2009.

16.  On 7 May 2009, the applicant was notified of his involuntarily extension on active duty pending the resolution of a formal investigation.

17.  On 8 May 2009, the applicant was directed to report to the Headquarters and Headquarters Company, 15th Signal Brigade on 11 May 2009 for Uniform Code of Military Justice (UCMJ) processing.

18.  On 15 May 2009, the brigade commander of Headquarters, 15th Signal Brigade, Fort Gordon, GA, appointed an investigation officer to conduct an informal investigation under the provisions of Army Regulation 15-6 (Boards, Commissions, and Committees Procedures for Investigating Officers and Board of Officers) to investigate the applicant's missed movement to Camp Shelby on or about 11 May 2008, his whereabouts for the last year, and any underlying circumstances that may have contributed to him being absent without leave.

19.  The investigating officer recommended the applicant be given a special court-martial for committing the following offenses:

* the applicant was absent without leave during the period 10 May 2008 through 12 May 2008
* the applicant was malingering (in time of war) - in less than a year the applicant made over 30 documented visits to medical facilities for various medical issues, follow-ups, and consults, to include an officer candidate school physical
* dereliction of duty - the applicant made deliberate false statements about his trainee status


20.  The investigating officer also indicated the applicant's behavior could have been avoided had there been a better tracking system.

21.  A DA Form 4430 (Department of the Army Report of Result of Trial) shows that on 24 May 2010 the applicant was tried by general court-martial at Fort Gordon, GA.  He pled guilty and was found guilty of quitting his unit on or about 11 May 2008 and remaining absent in desertion until on or about 7 May 2009.

22.  He was sentenced to reduction to the rank/grade of private/E-1, confinement for 5 months, and to be discharged with a bad conduct discharge.  His sentence was adjudged on 24 May 2010.

23.  On 6 October 2010, the S-3 Training Noncommissioned Officer (NCO) submitted a recommendation for clemency on behalf of the applicant.  He stated the applicant took his guidance in terms of accountability from the USAR liaison NCO.

24.  General Court-Martial Order Number 10, issued by Headquarters, U.S. Army Signal Center of Excellence and Fort Gordon, Fort Gordon, GA, dated 2 November 2010, shows that only so much of the sentence as provided for in the applicant's reduction in rank/grade of private/E-2, confinement for 4 months, and to be discharged with a bad conduct discharge was approved.

25.  General Court-Martial Order Number 98, issued by Headquarters, U.S. Army Fires Center of Excellence and Fort Sill, Fort Sill, OK, dated 31 May 2011, confirmed the applicant's court-martial sentence had been affirmed and directed the execution of the applicant's bad conduct discharge.

26.  Accordingly, the applicant was discharged as a result of a court-martial on 31 August 2011 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 3.

27.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he completed 1 year, 8 months, and 20 days of active service during this period.  His DD Form 214 also shows in:

* Item 25 (Character of Service), "Bad Conduct"
* Item 26 (Separation Code), the separation program designator code "JJD"
* Item 27 (Reentry Code), RE Code "4"
* Item 28 (Narrative Reason for Separation), "Court-Martial, Other"
* Item 29 (Dates of Time Lost During This Period), the entry, "Under 10 USC (United States Code) 972:  20080511-20090907; 2010524-20100826."
28.  There is no indication he petitioned the U.S. Court of Appeals for the Armed Forces for a review of his case.

29.  Army Regulation 635-200, paragraph 3-11, 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.

30.  Army Regulation 635-200, 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.

31.  Army Regulation 635-200, 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.

32.  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.

33.  Army Regulation 635-5-1 (Separation Program Designator (SPD)  Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.

	a.  It shows that SPD code JJD is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, chapter 3, by reason of court-martial.

	b.  The SPD/RE Code Cross Reference Table stipulates that RE code 4 will be assigned to members who are separated with an SPD code of JJD and a BCD.

* RE-1 applies to Soldiers 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
* RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable.  They are ineligible unless a waiver is granted
* RE-4 applies to Soldiers who are separated from their last period of service with a nonwaivable disqualification.  They are ineligible for enlistment

DISCUSSION AND CONCLUSIONS:

1.  While counsel contends the facts do not align with the harsh and inequitable treatment that the applicant has suffered and that the punishment he received compared to his actions and inactions offends one's sense of justice, he provided insufficient evidence to support these contentions. 

2.  Although counsel contends the applicant was given bad advice by counsel at the time, the applicant pled guilty to the charged offense which required that he essentially explain and acknowledge his crime before the military judge while under oath.  Further, he could have used the same argument as the basis for an appeal; however, there is no indication he petitioned the U.S. Court of Appeals for the Armed Forces for a review of his case.

3.  The applicant was issued a bad conduct discharge pursuant to the approved sentence of a general court-martial for quitting his unit on or about 11 May 2008 and remaining absent in desertion until on or about 7 May 2009.

4.  The appellate review was completed and the affirmed sentence ordered executed.  His conviction and discharge were effected in accordance with applicable laws and regulations in effect at the time and the discharge appropriately characterizes the misconduct for which he was convicted.

5.  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 were therefore appropriate.  As a result, clemency is not warranted in this case.

6.  Based on the foregoing, there is an insufficient basis to upgrade the applicant's discharge to an honorable or a general discharge.



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)                                         AR20130001887



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ABCMR Record of Proceedings (cont)                                         AR20130001887



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