IN THE CASE OF:	  

		BOARD DATE:	  19 February 2015

		DOCKET NUMBER:  AR20140009187 


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 changed to a medical discharge.

2.  The applicant states, in effect:

   a.  he completed his punishment, served his country, and he has to take care of a beautiful wife and two children;
   
   b.  he made mistakes in the past, sees his wrong doing, and wants to move forward with his life;
   
   c.  his family is all that he has and he wants to receive medical treatment for them and himself from the Department of Veterans Affairs (VA);
   
   d.  based on his service in the United States Marine Corps (USMC), the VA found him 100 percent disabled for which he is being compensated; and
   
   e.  changing his BCD to a medical discharge will not increase his pay; but it will allow him and his family to receive medical treatment from the local VA hospital instead of traveling to a VA hospital 90 miles away.
   
3.  The applicant provides:

* 3 DD Forms 214 (Certificate of Release or Discharge from Active Duty)
* A VA Letter
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 initially served in the USMC from 20 October 1992 until he was honorably discharged on 19 October 1996.  The DD Form 214 issued to him at that time confirms he completed 4 years of creditable active service.

3.  On 17 April 1997, he enlisted in the Regular Army.  He was trained in, awarded, and served in military occupational specialty 11B (Infantryman).

4.  On 15 January 2008, a general court martial (GCM) found the applicant guilty of violating the following articles of the Uniform Code of Military Justice (UCMJ):

* Article 80, attempting to steal U.S currency valued at more than $500.00
* Article 81, conspiracy (to commit larceny)
* Article 107 (2 specifications), making a false official statement
* Article 91 (4 specifications), disobeying a lawful order

5.  The applicant was also found not guilty of additional specifications and an additional charge.  His resultant sentence was a reduction to the rank of private, pay grade E-1; confinement for 1 year; and a BCD.  On 10 July 2008, the GCM convening authority approved the sentence.

6.  On 28 May 2009, the U.S. Army Court of Criminal Appeals affirmed the approved findings of guilty and the sentence.  On 4 November 2009 this court denied the applicant's request for a review of this decision.  

7.  On 21 November 2009, the U.S. Armor Center and Fort Knox, Fort Knox, Kentucky issued an order indicating the sentence had been affirmed pursuant to Article 71c.  The sentence to a BCD was ordered executed.
8.  The applicant's DD Form 214 shows he was discharged on 25 January 2010, under the provisions of Army Regulation 635-200, chapter 3, with a bad conduct characterization of service.

9.  The applicant's record is void of a finding of unfitness by the appropriate authority for any disabling condition at any time during his military service.  It is also void of any evidence showing he ever suffered a medical or mental condition warranting his processing through the Army Physical Disability Evaluation System (PDES).

10.  He provides a letter from the VA, dated 14 August 2012, showing he was granted a 100% combined service connected disability rating effective 
26 January 2010.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 provides the policies and procedures for separating members with a dishonorable or BCD.  It stipulates, in pertinent part, that a Soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial, and that the appellate review must be completed and affirmed before the BCD portion of the sentence is ordered duly executed.

12.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army 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.  Separation or retirement by reason of disability requires processing through the PDES.  A Soldier charged with an offense under the UCMJ may not be referred for or continue disability processing.

13.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of any VA rating does not establish error or injustice by the Army.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The Army disability rating is to compensate the individual for the loss of a military career.  The VA does not have authority or responsibility for determining physical fitness for military service.  The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  As a result, these two Government agencies, operating under different policies, may arrive at a different disability rating based on the same impairment.  Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should have been medically discharged from active duty.  However, his record is void of any evidence and he did not provide any evidence to show he suffered from a mental or medical condition that would have warranted his processing through the PDES.  Further, once he had been charged with an offense, he was no longer eligible to be processed through the PDES.

2.  The evidence of record confirms the applicant was discharged after completion of the appellate process and only after his sentence was affirmed by the appropriate appellate court.  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.

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.  In view of the foregoing, there is no 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)                                         AR20140009187



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140009187



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1