IN THE CASE OF:  	  

		BOARD DATE:  25 November 2014	  

		DOCKET NUMBER:  AR20140004701 


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 his bad conduct discharge (BCD) be upgraded to a medical retirement.

2.  The applicant states his BCD is unjust due to the fact that his medical records were provided as evidence at his court-martial on 20 December 2007.  He explored various recourses in an attempt to relieve the excruciating pain he experienced.  His military performance was lacking due to his physical limitations.  

	a.  He sought medical attention constantly in an attempt to identify the source of the pain; unfortunately, military doctors were unable to pinpoint the problem.  His military medical records show he attended sick call for his neck and throat every month after he returned from deployment and his civilian medical records show he visited a chiropractor at least 50 times while he was absent without leave (AWOL).  He now knows the pain was caused by a severe posture imbalance which created very tense muscles in the front neck region.  If he had known the source of the pain while he was in the military he could have self-treated, never gone AWOL, and completed his second deployment.  

	b.  He is currently married with a 4-year old daughter and only wants his discharge upgraded so he can get a Department of Veterans Affairs (VA) loan to buy a home in a better neighborhood for his family.  



3.  The applicant provides:

* Permanent Orders (PO) Number 081-145, dated 22 March 2006
* DA Form 4187 (Personnel Action), dated 7 April 2006
* Standard Forms (SF) 600 (Health Record – Chronological Record of Medical Care), dated between 21 February and 29 December 2006
* a series of medical records from the Chiropractic Wellness Center, dated between 19 January and 24 September 2007
* letter requesting clemency, dated 4 January 2008
* General Court-Martial (GCM) Orders Number 58, dated 31 March 2009
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

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 23 July 2004 and held military occupational specialty 11B (Infantryman).

3.  He provided PO Number 081-145, issued by Headquarters, 3rd Infantry Division, Fort Stewart, GA, dated 22 March 2006, awarding him the Combat Infantryman Badge for participating in ground combat operations to liberate Iraq in support of Operation Iraqi Freedom III, for service on 14 September 2005.  

4.  He provided a DA Form 4187, dated 7 April 2006, showing he was recommended and approved for award of the Combat Infantryman Badge for personally being engaged by the enemy in Tikrit, Iraq, on 14 September 2005.

5.  He provided SFs 600 showing:

	a.  On 21 February 2006, he was seen for a sore throat and indicated the pain he was experiencing was moderate. 

	b.  On 22 February 2006, he was seen for a sore throat and indicated it felt like something was caught in his throat on the right side when he swallowed.  His physician indicated he had a pharyngeal disorder and stated it was likely the sensation he was experiencing was a result of a localized irritation.

	c.  On 9 May 2006, he was seen for a pharyngeal disorder that was tender to palpitation over the right sternocleidomastoid (SCM) anteriorly.  He indicated the pain decreases with swallowing but begins again with mastication (mainly on the right jaw line and anterior SCM).  He had a single palpable non-tender node on the post cervical spine at C-1.  Additionally, he was diagnosed with globus hystericus (the sensation of having a lump in the throat when there is nothing there). 

	d.  On 5 June 2006, he was seen in the Otolaryngology Clinic and given a provisional diagnosis of idiopathic SCM neck pain with a single node (lymph node neoplasm) neck cervical, and further referred to another physician who diagnosed him with non-infectious gastroenteritis.

	e.  On 6 July 2006, he had a Computerized Tomography (CT) scan of his neck.  On 10 July 2006, he was seen as a follow-up to his CT scan.  The CT scan revealed a small 1 centimeter node in the right jaw region.  His physician, in the Otolaryngology Clinic, also indicated he may also have hyoid syndrome and if it was not better in three weeks he may agree to a right jaw lymph node removal.

	f.  On 31 July 2006, he was seen in the Otolaryngology Clinic.  His physician indicated the applicant had a small non-pathologic lymph node.  His physician did not believe that surgery should be done for pain and discomfort for the region.  However, the applicant wanted a second opinion and his doctor referred him to general surgery.  

	g.  On 11 August 2006, he was seen by a social work care manager for anger.  His symptoms included verbal outbursts and talking back to his chain of command.  The applicant reported that he had this problem most of his life.  He had a psychiatric comprehensive examination and was diagnosed with an adjustment disorder.  

	h.  On 23 August 2006, he was seen in the Division Mental Health Clinic .  His symptoms included anxiety and disturbing or unusual thoughts.  He did not have any suicidal or homicidal ideation.



	i.  On 25 August 2006, he was seen by a physician in the General Surgery clinic.  The physician stated the applicant was being seen for right neck pain.  He 
had previously been seen by ear/nose/throat (ENT) for a lymph node on the right, anterior cervical as well as an evaluation for his tonsils.  The applicant stated he was angry about the pain that began in Iraq and that he felt a mass on his right neck when he pushed his hyoid from left to right.  His CT scan was negative for significant pathology.  The applicant wanted a Kevlar profile.  The applicant was released without limitations and his physician stated he attempted reassurance but the applicant had very negative and unrealistic expectations.  The physician stated he agreed with the referring physician from the Otolaryngology Clinic, in that the applicant did not require surgery.  Further, the physician found no physical or radiographical evidence of disease that would warrant a physical profile. 

	j.  On 25 August 2006, he was seen by the social work care manager for a group session.  The applicant shared with the group that he has having conflict with a member of his chain of command and the member humiliates him and makes him look stupid.  He also reported that he gets into trouble because he talks back and added that he thinks he might get chaptered out of the Army, but stated he did not want to leave the Army.

	k.  On 5 September 2006, he was seen by the Troop and Family Medical clinic.  Upon examination no node was appreciated and no abnormal findings with swallowing.  The examination of his ENT, neck, and lungs was benign.  Though no node was noted upon examination, an abnormal finding on a recent CT scan of his neck was noted.  The applicant wanted the 1 centimeter node surgically removed if possible.  However, ENT and Surgery refused.  The CT scan showed a single shotty lymph node at the level of the hyoid bone anterior to the jugular vein bilaterally, much greater on the right side.  Otherwise the exam was unremarkable.  His physician diagnosed him with acute lymphadenitis cervical and recommended a second opinion with surgical service.

	l.  On 10 October 2006, he was seen by the Behavioral Health Clinic.  The applicant stated he was having issues with his unit not believing him about the problems he was having with his neck.  The applicant was having issues with depression, sleep disturbances, loss of pleasure, being upset by problems at work and home, and interpersonal relationships.  He stated the pain in his neck was low but increased with stress.  Additionally, his mood was becoming more frustrated and resentful of his unit.  



	m.  On 18 October 2006, he was seen by the Division Social Work Clinic for an individual counseling session where his adjustment order, mood, and thought content was discussed.

	n.  On 25 October 2006, he was seen by the 3rd Infantry Division Behavior Health Clinic.  His physician noted that his mood was angry and his judgment and insight were impaired.  The applicant was scheduled to deploy and he reported he may go AWOL as the deployment date nears.  The applicant stated he could not work as long as his body continued to feel the way it currently felt.  He also stated that if someone tried to find him he might attempt to harm them or himself to avoid going to jail.

	o.  On 9 November 2006, he was seen by the 3rd Infantry Division Behavior Health Clinic.  His physician noted that his mood was frustrated, and his thought content revealed impairment, and insight was impaired due to pain.  

	p.  On 22 December 2006, he was seen by the Troop and Family Medical Clinic for a follow-up appointment recommended by behavioral health.  His physician scheduled him for another consultation with general surgery.  

	q.  On 29 December 2006, he was seen by his doctor at the Troop and Family Medical Clinic.  His doctor stated the applicant had a single cervical lymph node on the right side which was enlarged but difficult to identify without the applicant's help.  The node was not painful when palpitated and there was no pain response when the area around the node was palpitated.  The surgeon discussed the applicant's case with several other physicians and referred the applicant for blood work and an X-ray.  The applicant also stated he had an appointment with his behavior health physician to discuss whether or not his chain of command had been made aware of his current condition.  

	r.  On 29 December 2006, he was seen in the General Surgery Clinic.  His physician again stated the applicant had a single shotty lymph node at the level of the hyoid bone anterior to the jugular vein bilaterally, much greater on the right side.  Otherwise the exam was unremarkable.  The physician stated the applicant had multistational lymph nodes throughout the neck, most notably at the right level I, submandibular distribution and bilateral jugular digastric node distribution.  However, none of these were pathologic by size criteria and they were without evidence of a cortical break through or surrounding the mass or affected area.  The physician also stated the applicant had been evaluated on numerous occasions by several doctors; therefore, he recommended the applicant see another surgeon at the Army hospital or an outside surgeon for aspiration for further evaluation and confirmation to probable benign etiology before the applicant deployed to Iraq on 10 January 2007.
6.  He provided a series of medical records from the Chiropractic Wellness Center, dated between 19 January and 24 September 2007, which show he received chiropractic treatments on 47 occasions.

7.  His record contains a DA Form 4187, dated 17 January 2007, which shows his duty status changed from present for duty (PDY) to AWOL on 13 January 2007.

8.  His record contains a DD Form 553 (Deserter/Absentee Wanted by the Armed Forces), dated 22 February 2007, which shows his status changed from AWOL to desertion on 13 February 2007.

9.  His record contains a DD Form 616 (Report of Return of Absentee), dated 
24 September 2007, which shows he surrendered to military authorities that same day.  

10.  His record contains a DD Form 458 (Charge sheet), dated 5 March 2007, showing court-martial charges were preferred against him for being AWOL from 13 January to 24 September 2007.

11.  He provided a letter, requesting clemency, dated 4 January 2008, wherein he stated he felt his sentence was too harsh.  He left the Army without permission because, in effect, he was experiencing severe neck and back pain that was so severe he contemplated suicide on many occasions.  He felt depressed because his pain had not resolved despite treatments by military doctors and eventually his chain of command sent him to mental health for an evaluation.  He also stated that during his period of absence he had seen a civilian chiropractor 57 times.  He also indicated that he met the woman he plans to marry during his absence, and that she and her family convinced him to turn himself in and even helped him by standing beside him throughout the process.  Lastly, he stated he was not proud of his actions and wished to apologize and take responsibility for his actions so that he could move his life forward in a more positive direction.

12.  GCM Orders Number 18, issued by Headquarters, Fort Stewart, GA, on 
25 June 2008, show he was convicted of being AWOL/desertion from 13 January 
to 24 September 2007 in an attempt to avoid hazardous duty (deployment to Iraq).  His sentence, which was adjudged on 20 December 2007, included a reduction to private/E-1, confinement for 14 months, and to be discharged from the service with a BCD.  However, only so much of the sentence as provided for a reduction to private/E-1, confinement for 13 months, and a BCD would be executed.  

13.  GCM Order Number 58, issued by Headquarters, U.S. Army Armor Center, For Knox, KY, on 31 March 2009, states the sentence to a BCD, confinement for
13 months, reduction to the rank/grade of private/E-1, adjudged on 20 December 2007, as promulgated in GCM Order Number 18, dated 25 June 2008, had been finally affirmed.  The sentence to confinement had been served, and the BCD would be executed.

14.  His DD Form 214 shows he was discharged with a BCD as a result of a court-martial on 15 June 2009.  He completed 3 years, 4 months, and 15 days of net active service with 231 days of lost time.

15.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army 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 or her office, grade, rank, or rating.  The mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  Separation [or retirement] by reason of disability requires processing through the PDES.  Chapter 4 of this regulation contains guidance on processing Soldiers through the PDES, which includes the convening of a Medical Evaluation Board (MEB) to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  If the 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.  The PEB investigates the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board.  It also 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.

	a.  Paragraph 4-1 (Soldiers charged with an offense) states the case of a Soldier (UCMJ) or who is under investigation for an offense chargeable under the 
UCMJ which could result in dismissal or punitive discharge, may not be referred 
for, or continue, disability processing unless the investigation ends without charges, the officer exercising proper court-martial jurisdiction dismisses the charges, or the officer exercising proper court-martial jurisdiction refers the charge for trial to a court-martial that cannot adjudge such a sentence.



	b.  Paragraph 4–2 (Soldiers with suspended sentences) states a Soldier may not be referred for, or continue, disability processing if under sentence of dismissal or punitive discharge.  If the sentence is suspended, the Soldier’s case may then be referred for disability processing.  A copy of the order suspending 
the sentence must be included in the Soldier’s records.  If action to vacate the suspension is started after the case is forwarded for disability processing, the PEB serving the area must be promptly notified to stop disability processing.  Disability processing may resume if the commander decides not to vacate the suspension.

16.  Army Regulation 635-200, chapter 3, prescribes the policies and procedures for separating members with a BCD.  It stipulates that a Soldier would be given a BCD pursuant only to an approved sentence of a general or a special court-martial and that the appellate review must be completed and affirmed before the sentence is ordered duly executed.

	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.  

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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was convicted by a GCM of being AWOL/deserting in an attempt to avoid deployment and he was ordered to be discharged with a BCD.  His trial by court-martial was warranted by the gravity of the offenses charged.  His conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterized the misconduct for which he was convicted.

2.  He provided no evidence to show his discharge or the court's decision to find him guilty is unjust or as a result of improper actions.  There is no error or injustice in his record.  There is also no evidence his court-martial was unjust or inequitable.  It is presumed that his medical records were reviewed during the appellate action.

3.  His record does not contain any evidence in his record to show he had a physical profile or that he was unable to perform the duties of his rank or military occupational specialty prior to going AWOL.  After he returned from being AWOL he was convicted by a GCM and part of his sentence included a BCD.  Since the charges were not dropped at any time, he was not eligible for referral through the PDES.  

4.  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.  Absent any mitigating factors, the type of discharge directed and the reasons were appropriate.  As a result, clemency is not warranted in this case.  In view of the circumstances in this case, he is not entitled to an upgrade of his discharge.

5.  The ABCMR does not grant requests for the correction of records solely for the purpose of making the applicant eligible for veterans or other benefits.  Every case is individually decided based upon its merits when an applicant requests a correction to his military records.

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)                                         AR20140004701



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ABCMR Record of Proceedings (cont)                                         AR20140004701



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