BOARD DATE:	  17 October 2013

		DOCKET NUMBER:  AR20130004742 


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 reconsideration of his earlier request for an upgrade of his bad conduct discharge.  As a new issue, the applicant requests his disability rating be changed to 100 percent. 

2.  The applicant states his discharge was inequitable. 

3.  The applicant provides:

* DD Form 214 (Report of Separation from Active Duty)
* Post-service Mental Disorder Questionnaire from Narrative Report
* Multiple post-service Brief Follow-up Medication Support Service forms
* Multiple post-service Initial Medication Support Service forms
* Multiple post-service Client Care Coordination Plan forms

COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE:

1.  Counsel requests an upgrade of the applicant's discharge with a 100 percent disability rating. 

2.  Counsel states: 

* the applicant was mistreated due to his Latin descent; he was discriminated against by his fellow Soldiers
* despite the racial comments, he performed his duties as a medic, even in situations that involved hate crimes
* he was once attacked by 10 African-American Soldiers in the barracks - a hate crime; his commanding officer covered up the truth
* he suffered traumatic head injuries which were not properly addressed by the military 
* he continues to suffer from post-traumatic stress disorder, black-outs, hallucinations, and schizophrenia, even today
* he struggled with everyday life since his discharge and he was unable to receive Department of Veterans Affairs (VA) benefits due to the characterization of his service
* his civil rights were violated and continue to be violated with a dishonorable discharge

3.  Counsel does not provide any evidence. 

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) AC90-07547, dated 6 March 1991.

2.  The applicant does not meet the two-tiered criteria for a request for reconsideration in that his application was neither received within one year of the original Board decision nor does it contain new evidence.  However, he raises a new issue that is directly related to the characterization of service.  This issue is now considered by the Board.

3.  The applicant's records show he enlisted in the Regular Army on 10 October 1973 and held military occupational specialty 91B (Medical Specialist).   

4.  He served in Germany from 22 April 1974 to 15 September 1975.  The highest rank/grade he attained during his military service was private first class (PFC)/E-3. 

5.  On 20 January 1975, in Germany, he pled guilty and was convicted by a summary court-martial of one specification of behaving himself with disrespect toward a commissioned officer by failing to render a hand-salute and one specification of willfully failing to obey a lawful order from a commissioned officer. The court sentenced him to a reduction to E-2 and a forfeiture of pay.  The convening authority approved his sentence on the same date. 

6.  On 1 April 1975, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave from 31 March to 1 April 1975.  His punishment consisted of a reduction to the lowest enlisted grade.  

7.  On 8 July 1975, he was convicted by a special court-martial of:

* one specification of causing a breach of the peace by wrongfully engaging in an affray
* one specification of disobeying a lawful command of a superior commissioned officer
* one specification of willfully disobeying a lawful order from a superior noncommissioned officer

8.  The court sentenced him to a bad conduct discharge.  The convening authority approved the sentence on 20 August 1975.  The record of trial was forwarded to The Judge Advocate General of the Army for appellate review. 

9.  On 8 October 1975, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

10.  On 28 January 1976, the U.S. Court of Military Appeals denied his petition for a grant for review. 

11.  Headquarters, 7th Infantry Division and Fort Ord, Fort Ord CA, Special Court-Martial Order Number 16, dated 14 February 1976, shows that after completion of all required post-trial and appellate reviews the convening authority ordered the applicant's bad conduct discharge executed.

12.  He was discharged on 5 March 1976.  The DD Form 214 he was issued shows he was discharged in accordance with chapter 11 of Army Regulation 635-200 (Personnel Separations) as a result of court-martial with a bad conduct discharge.  This form further shows he completed 2 years, 4 months, and 25 days of creditable military service and he had 1 day of lost time. 

13.  On 4 April 1977, the Army Discharge Review Board (ADRB) reviewed his discharge but found it proper and equitable.  Accordingly, the ADRB denied his petition for an upgrade of his discharge. 

14.  On 6 March 1991, the ABCMR also reviewed his request for an upgrade of his discharge and an award of damages in the amount of $6,000,000.  The Board determined there was no error or injustice in the characterization of his service and as such denied his petition for an upgrade.  The Board also informed him that adjudication of a claim for punitive damage was not within its purview. 

15.  Between August 2000 and December 2010, he submitted 6 applications for reconsideration of his request for an upgrade of his discharge.  In each case, he was notified his requests did not meet the criteria for reconsideration.  

16.  He now presents multiple post-service medical documents, varying in dates between 2010 and 2011, related to his mental status evaluation.  It appears he was recently diagnosed with schizophrenia, paranoid type. 

17.  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.

18.  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.

19.  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.

20.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  It provides for medical evaluation boards (MEB) which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness).  

	a.  If an MEB determines a Soldier does not meet retention standards, the case will be referred to a physical evaluation board (PEB).  The PEB evaluates all cases of physical disability equitably for the Soldier and the Army.  It also investigates the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board.  It evaluates the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating.  Finally, it makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability.

	b.  The mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his office, rank, grade or rating.  The Army must find that a service member is physically unfit to reasonably perform his duties and assign an appropriate disability rating before that service member can be medically separated or retired.

	c.  Chapter 3 states 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 they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.

	d.  Chapter 4 states an enlisted member may not be referred for physical disability processing when action has been started that may result in an administrative separation with a characterization of service of under other than honorable conditions.  A Soldier convicted by a court-martial to a bad conduct or a dishonorable discharge is ineligible for disability processing.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant's trial by a special court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterized the misconduct for which the applicant was convicted. 

2.  The appellate review was completed and the affirmed sentence ordered duly executed.  All requirements of law and regulation were met with respect to the conduct of the court-martial and the appellate review process and the rights of the applicant were fully protected.

3.  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 therefore were appropriate.  As a result, clemency is not warranted in this case.
4.  With respect to his/counsel's arguments:

	a.  The applicant's contention of impropriety in his discharge relate to evidentiary matters which could have been raised or adjudicated during the court-martial or in the court-martial appellate process.  That would have been the proper forum to raise any issues.  Neither the applicant nor his counsel provides substantiating evidence of the alleged discrimination, beating, or mistreatment. 

	b.  Contrary to his contention that his discharge was inequitable, the evidence of record clearly shows he violated the UCMJ and he was punished for it.  Additionally, it is unclear how his due process was violated.  The evidence of record clearly shows his case was considered by a special court-martial and he was provided with counsel and his case was reviewed through the appellate process.  Finally, his case was also reviewed by the ADRB and this Board.  None of his contentions are substantiated, especially after the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence. 

	c.  Also contrary to his contention, the court-martial had access to his service record and would have considered the alleged discrimination, racism, and claimed beating, during the proceedings and during the sentencing.  Likewise, the mental and physical injuries he contends would have been considered by the court.  This would have been the proper forum to raise such issues. 

	d.  He provides no evidence that his rights were violated or that he was provided with ineffective assistance, or that the court showed prejudice and did not follow military rules and procedures, or that he was treated any differently than other Soldiers.

	e.  Nowhere in his records does it show he suffered from a mental, psychological, or medical condition that led to his extensive history of misconduct.  There is no evidence in his records and he did not provide any substantiating evidence that shows his misconduct was a result of a mental condition.  In order to be processed for disability, a member must show he/she had a diagnosed condition that failed retention standards and found to be unfitting.  There is no such condition in the applicant's case.  His current diagnosis some 25 years later does not establish entitlement to disability. 

	f.  Disability benefits are exclusively for those whose military service is interrupted by a medical disability.  The applicant's service was not interrupted by a medical disability; it was interrupted by his misconduct that led to his court-martial conviction.  He was ineligible to be considered for disability processing even if he did in fact have an unfitting condition. 

	g.  His entitlements or lack of entitlements to VA benefits is not within the purview of this Board.  He should address such issues with that agency.

5.  Based on his record of misconduct, that included a summary court-martial conviction, one instance of NJP, one instance of AWOL, and a special court-martial conviction, and after a careful review of the applicant’s entire record of service, it is clear that his service did not meet the criteria for a general or an honorable discharge.  As a result, he is not entitled to an upgrade of his discharge.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x_____  ___x_____  ___x_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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 to amend the decision of the ABCMR set forth in Docket Number AC90-07547, dated 6 March 1991.

2.  As for the new issue, 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)                                         AR20130004742



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ABCMR Record of Proceedings (cont)                                         AR20130004742



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