IN THE CASE OF:	  

		BOARD DATE:	  1 October 2014

		DOCKET NUMBER:  AR20140000403 


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 reconsideration of the applicant's request for an upgrade of his bad conduct discharge to an honorable discharge.

2.  Counsel states the Army Board for Correction of Military Records (ABCMR) decision letter stated the applicant's physical and mental conditions at the time of discharge are unclear.  It was also stated that his injuries were not available for review, nor was any documentation submitted by the applicant to address his reason for going absent without leave (AWOL).  In an attempt to address these issues, counsel has provided medical records and not only a statement from the applicant but several other lay statements to try and explain his reasons for going AWOL.

3.  Counsel provides:

* a statement from the applicant
* numerous documents extracted from the applicant's medical records (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)
* five third-party statements of support

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 ABCMR in Docket Number AR20120012372, on 29 January 2013.

2.  The applicant and counsel provided a self-authored statement and third-party statements explaining how the applicant's mental/physical condition and other circumstances served as catalysts for his misconduct which were not previously considered.  Therefore, it is considered a new argument which warrants consideration by the Board.

3.  The applicant's record shows that he enlisted in the Regular Army on 2 August 1977 and 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.

4.  On 23 March 1994, while assigned to Headquarters and Headquarters Company, (HHC), 2nd Battalion, 504th Parachute Infantry Regiment, 82nd Airborne Division, Fort Bragg, NC, he and his battalion were involved in an airplane crash disaster at Pope Air Force Base, adjacent to Fort Bragg.  This incident 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, (WRAMC) Washington, DC, for continued treatment and rehabilitation.  His complete medical records are unavailable for review.  While his exact period of hospitalization is unclear, certain medical documents allude to it exceeding 1 year prior to being returned to duty at Fort Bragg.

5.  A Standard Form (SF) 502 (Narrative Summary) shows the applicant was admitted to Cape Fear Valley Medical Center (CFVMC) from the mass casualty on 23 March 1994.  

	a.  His chief complaints were an open grade IIIA left tibia fracture of his left tibia, open left distal ulnar fracture, left ulnar nerve repair and multiple tendon lacerations of the left hand.

	b.  After initial stabilization at Fort Bragg, he was immediately transferred to CFVMC where he underwent wound exploration and debridement of his wounds and repair of multiple tendons.

	c.  On 12 April 1994, he was released from CFVMC and returned to Womack Army Medical Center (WAMC), Fort Bragg on 13 April 1994.  At that time, it was determined that he would need follow up care at WRAMC to receive definitive treatment.

	d.  His hospital course at WAMC had been unremarkable since transfer.  He had been on pass and had returned only for dressing changes.

6.  An SF 600 (Health Record - Chronological Record of Medical Care) shows the applicant informed his treating physician that he was experiencing significant strife at home and indicated that he could not depart to WRAMC for orthopedic evaluation as recommended the day prior.  He stated that he needed at least a couple of months to correct a very difficult family situation.  The physician advised him that his medical care needed to be a priority and the applicant informed him that his social situation required immediate attention and his orthopedic care should be second.  The physician stated that he hoped the applicant's situation would improve in order for him to receive optimal care.  Later that day, a psychiatric consult was arranged based upon the applicant's request.

7.  An SF 513 (Medical Record - Consultation Sheet), dated 15 April 1994, shows the applicant underwent a psychiatric evaluation based upon his request following his involvement in a mass casualty incident.  The examining psychiatric clinical nurse specialist noted:

	a.  Impression:  Post-traumatic stress disorder (PTSD); Adjustment disorder; marital problem, pending divorce; and severe hand and leg deformity - trauma.

	b.  Recommendation:  Patient is undergoing serious multiple psychosocial stressors.  Prior to being seriously injured in a traumatic accident he was undergoing a child custody battle in reference to a pending divorce.  This had intensified his stress reaction and emotionality after the plane crash.  The patient will be followed in the hospital by psychiatry and he was instructed to first focus on legal/marital issues and also follow-up treatment at Division Mental Health for PTSD debriefing and supportive counseling.

8.  An SF 513, dated 25 April 1994, shows the applicant was examined regarding his complaints of chronic mental problems, financial problems, concerns over future access to his children, sleep disturbance, anger, lack of interest, depressed mood, intrusive thoughts and resolving visual recollections.  His diagnoses included Axis I - Major depression attributed to mild PTSD and resolving marital problems.

9.  An SF 513, dated 2 May 1994, shows the applicant's command referred him to Social Work Services at WRAMC for evaluation and assistance with discharge planning.  It was noted that the applicant had been air evacuated from Fort Bragg to WRAMC on 25 April 1994 for follow up care due to an airplane accident on 23 March at Pope Air Force Base.  He was separated and undergoing divorce and a child custody battle.  He was alert and oriented, but his spirits were low.  He reported a history of depression, but did not give details.  He expressed concerns over financial problems stemming from bills and child support from both a previous marriage and his current marriage.  He also stated that he was not sleeping and his future looked bleak.  The applicant was being seen by post-traumatic checklist scale specialists at WRAMC.  He was very concerned about his status to remain on active duty and did not want a medical board.  He stated that his unit had been helpful to a point, but felt that he had been rushed to WRAMC.

10.  The applicant's complete MEB proceedings are not available for review; however, an addendum to the 22 June 1995 WRAMC MEB report provides a synopsis of the applicant's injuries, all of the surgeries he'd undergone, and an assessment of his current medical status.  The Disposition portion of this document reads as follows:

"(The applicant) has spent over one year as an inpatient at Walter Reed. He has made a tremendous amount of progress in the rehabilitation of both his left upper and left lower extremities.  At this time, he requires a brace to help support his wrist, however he does have excellent function of his wrist at this time.  It is felt by the Hand Surgery Service at Walter Reed that the patient at this time is fit for duty with a permanent profile.  He will require continued evaluation of his left upper extremity and may require additional surgical and nonsurgical treatment in the future."

11.  Counsel provides a document that appears to be an email from R____ R_____ to HEC, RRR, dated 8 March 1996, Subject (The applicant), which reads as follows:

"He came by today to pick up a copy of his medical records.  He says he is having a go-around with the Army re: his condition.  He is still being seen at Walter Reed and basically is in limbo.  His unit is pressing to get him to a medical board for a profile and a subsequent disability.  Walter Reed has lost his medical records 3 times, that is why he needed a copy.
His Commander may call here wanting verification that we had a copy of his medical records, but he does not want us to tell him about the lawsuit."

12.  On or about 6 November 1996, the applicant's unit reported him AWOL.  He remained AWOL until he was apprehended and returned to military control on or about 30 April 1999.

13.  On 11 January 2000, the applicant appeared before a general court-martial at Fort Bragg and 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 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 1 March 1999.

14.  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, a forfeiture of all pay and allowances, and the issuance of a bad conduct discharge.  The convening authority approved his sentence of reduction to the rank/grade of PV1/E-1, a forfeiture of $670.00 pay for 4 months, and a bad conduct discharge, and except for the portion pertaining to his bad conduct discharge, ordered it duly executed.

15.  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.

16.  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.

17.  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.

18.  His record is void of documentation that shows he underwent a separation physical examination.  His record is also void of any medical evidence and he has not provided any medical evidence showing his physical and mental condition at the time of his discharge.

19.  Counsel provides a statement rendered by the applicant wherein he essentially recounts:

	a.  The highlights of the mass casualty event during which he was injured, his extensive medical treatment, and the difficult recovery process.

	b.  The difficulties in his family life at the time that needed his special attention.  His wife at the time was not a stable individual; she would often leave home and stay gone for several days at a time while their two children were unattended or in the care of her relatives or strangers.  As a result, he was the primary care giver for the children and he was responsible for cooking, cleaning, and tending to the children's needs on a daily basis.  His wife knew how important his relationship with the children was and used it to manipulate him during their separation and divorce process.  Worrying about their well-being caused him much stress and he had to receive medical counseling in order to cope.

	c.  His return to his unit following his release from the hospital.  The unit was in an uproar about what to do with so many Soldiers who were severely injured and unable to perform their duties so they kept him around to help out with odd jobs.  He contends that a group of senior noncommissioned officers, who were attempting to leave the 82nd Airborne Division, had it in their minds to falsify paperwork to have it look like he was deployable so he could take their place.  The division command sergeant major (CSM) found out about this scheme and admonished everyone involved.  The CSM also had the applicant reassigned to WAMC so he could work on his MEB process.  When the applicant arrived at WAMC, their CSM refused to let him in-process because he was tired of the 82nd Airborne Division sending them their "reject" personnel.

	d.  The reassignment process dragged on from October 1996 to September 1997.  At this time, he was tired of being passed around and his family and marital problems were worsening.  His wife was threatening to go away with another man and just leave their kids without supervision.
	e.  He discovered that a class-action lawsuit was being developed by a top law firm in order to give the families of the personnel who were killed or injured in the Pope Air Force Base crash in March 1994 compensation for their suffering.  Since Soldiers were not allowed to sue the government, the lawyers appealed to the families of the victims.  Without his knowledge, the applicant's wife signed them up as one of the families willing to participate in this class-action lawsuit.  He cannot prove this theory, but as soon as the news went public everyone within the military began to ostracize him.

	f.  He knows that going AWOL was wrong, but he felt he had no choice but to go back and be there for his children.  As soon as he returned, his wife left him with two children to look after.  Caring for them took the majority of his time, but he still made attempts to get his military affairs in order.  He admits that he could have handled this situation better, but between the rejection he experienced from the Army and all of his family problems he did not know what to do.  He did not want to destroy 19 years of a good military career, but his head and heart were pulled in so many directions that he made some poor emotional decisions.  Things got so bad that he even considered committing suicide, but did not want to abandon his children.

	g.  He was a good Soldier for 19 years and had never gotten as much as a negative counseling statement.  A review of his performance evaluation reports will show that he never received anything less than top grade evaluations.  He loved serving in the military and regrets letting them and his family down.

	h.  He hopes that his past mistakes will not overshadow his good deeds now. He is currently a pastor at his church and serves the homeless and hungry in his community.  He has four children and three grandchildren and has not been in any trouble with the law in his local and State environment.  He is the person who always tried to help others and put himself last.  He is not the monster or criminal that certain people have tried to make him out to be and he hopes a thorough review of all of the evidence result in an upgrade of his discharge and enable him to receive benefits for his period of honorable service from August 1977 to October 1996.

20.  Counsel provides five third-party statements of support wherein the authors relate their personal experiences, opinions, and observations pertaining to the applicant to include:

* Prior to being injured in the accident:

* he was a model Soldier, father, husband, and member of the church
* he was proud of his job and personal appearance
* he was very vibrant, energetic, physically fit, and well-spoken
* he commanded his troops with the utmost loyalty and respect and his personal courage was unquestionable
* he was a talented musician who played the guitar and keyboard
* he was an excellent cook who prepared meals for church dinner sales

* Since the accident:

* he lost his wife, children, and military career
* he lost his ability to run, work out, play basketball, and stand for long periods of time
* he appears to be depressed and emotional and often experiences mood swings
* his memory of music pieces and lyrics has faded and he has not been able to focus and finish musical projects
* he talks, jumps, shakes, and sometimes kicks during his sleep
* he is easily confused and becomes angry
* he appears to be in constant physical pain and sometimes covers his ears with his hands as if he is shielding them from an explosion
* he's has difficulty gaining and retaining employment

21.  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.

22.  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 and counsel contend that his bad conduct discharge should be upgraded to an honorable discharge based on his otherwise honorable service, the severity of the injuries he sustained on 23 March 1994, and the physical and mental state that he was in at the time of his misconduct.  

2.  The severity of his injuries is acknowledged; however, the evidence clearly shows that he received extensive medical treatment and was afforded a significant amount of time to convalesce.  Ultimately, he recovered sufficiently to warrant retention on active duty with assignment limitations.  This is further substantiated by the fact that he was returned to duty at Fort Bragg in July 1995 and did not go AWOL until November 1996.

3.  The applicant's stated reasons for going AWOL are duly noted and it is presumed that they were taken into consideration during his court-martial proceedings because they were well-documented in his medical records and he was represented by counsel at the time.  These extenuating circumstances would have been taken into consideration along with all other evidentiary and legal matters that were addressed and conclusively adjudicated in the court-martial appellate process.

4.  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.

5.  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.  

6.  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 to amend the decision of the ABCMR set forth in Docket Number AR20120012372, dated 29 January 2013.



      _______ _   __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)                                         AR20140000403



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ABCMR Record of Proceedings (cont)                                         AR20140000403



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