IN THE CASE OF:	  

		BOARD DATE:	  9 June 2015

		DOCKET NUMBER:  AR20140017325 


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, the caregiver of the former service member (FSM), requests reconsideration of the FSM's request for upgrade of his bad conduct discharge (BCD) to a general, under honorable conditions discharge.

2.  The applicant states the FSM was involved in an automobile accident on or about 18 April 1983, prior to his entry into military service.  He had a cranial debridement procedure, cranial autonomy, and a fracture of the right femur.  He was in a coma and also in traction for about 2 months.  At the time the FSM was a minor (17 years of age), so he was not informed that he was diagnosed with a traumatic brain injury (TBI).

   a.  The applicant states the FSM entered military service in November 1989 with an unfitting, pre-existing medical condition.  He was court-martialed, confined at Fort Riley, KS, and discharged for falsifying government records.

   b.  Two brain surgeons, a gastro-internist, and an orthopedic surgeon have confirmed the diagnosis of TBI.  The FSM was informed of this diagnosis in September 2013.

   c.  The FSM is a homeless veteran.  He suffers from essential tremors affecting his ability to catch, grasp, or hold eating utensils.  He has developed ischemia, which affects his behavior and cognitive skills, and his current condition is irreversible.

   d.  The applicant adds that the FSM's mental disorder associated with TBI and physical residual limitations since the accident, along with being court-martialed without his medical diagnosis being considered, brought on additional mental trauma considered as Post-Traumatic Stress Disorder (PTSD).

   e.  Based on the medical and psychological information the applicant provides, she is asking for a "special circumstances review" and expeditious correction of the FSM's records.

3.  The applicant provides a Department of Veterans Affairs (VA) Form 21-0845 (Authorization to Disclose Personal Information to a Third Party), completed by the FSM, which authorizes her (D____ J. W____) to act on his behalf with respect to information relating to the claim that the FSM signed on 25 October 2013, and shows the authorization is ongoing until written notice is given otherwise.  The applicant also provides copies of the FSM's medical records, surgeries, and hospital notes; government assistance, rehabilitation, and special-needs records; and his DD Form 214 (Certificate of Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the FSM's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20140001469 on 
2 September 2014.

2.  A review of the Standard Form (SF) 93 (Report of Medical History) and SF 88 (Report of Medical Examination), prepared by the FSM and the examining physician to document the FSM's entrance physical examination on 28 October 1989, shows the FSM acknowledged treatment for a fractured right femur that he sustained in 1982.  He denied any other treatment or being hospitalized, or having surgery for any other medical condition.  The SF 88 also shows the examining physician found the FSM qualified for enlistment.

3.  The FSM enlisted in the U.S. Army Reserve Delayed Entry Program on 
28 October 1989 for a period of 8 years.  He then further enlisted in the Regular Army on 7 November 1989 for a period of 4 years.  At the time he was 24 years of age.  Upon completion of training he was awarded military occupational specialty 94B (Food Service Specialist).


4.  Headquarters, Fort Hood, TX, General Court-Martial Order Number 61, dated 11 October 1990, shows the FSM pled guilty to and was found guilty of:

* on 17 May 1990, committing assault upon a child under the age of 
16 years by striking her in the face, head, legs, and chest with his hands and a belt, and by lifting her into the air, shaking her, and throwing her against furniture
* on 15 May 1990, unlawfully striking a child under the age of 16 by striking her on the back, buttocks, and legs with his hands and a belt
* being absent without leave from 12 May to 18 May 1990 and from 22 June to 11 July 1990

   a.  The additional charge of signing an official record (SF 93, Report of Medical History), which record was false in that the FSM indicated that he had no history of head injuries and was then known by the FSM to be false, was dismissed without prejudice to the government.

   b.  He was sentenced to confinement for nine months, forfeiture of all pay and allowances, and a BCD.

   c.  On 11 October 1990, the General Court-Martial Convening Authority approved the findings and sentence, except for the part of the sentence extending to a BCD, and ordered it executed.

5.  A DA Form 5181-R (Screening Note of Acute Medical Care), dated 
30 October 1990, shows the FSM reported that he was involved in a car accident in which he had his femur broken and that his skull had cracks in three places.  He complained of having pain in these areas and was prescribed medication.

6.  On 7 February 1991, the FSM affirmed that he underwent a medical examination in conjunction with his separation and that there had been no significant change in his medical condition since the medical examination.

7.  The U.S. Army Court of Military Review (CMR) considered issues raised personally by the FSM and his counsel and found them to be without merit.  The CMR affirmed the findings and sentence on 20 June 1991.

8.  Headquarters, U.S. Army Correctional Brigade, Fort Riley, KS, General Court-Martial Order Number 359, dated 17 September 1991, confirmed that the FSM's court-martial sentence was affirmed.  The provisions of Article 71(c) having been complied with, the portion of the sentence pertaining to a BCD was ordered duly executed.

9.  The FSM's DD Form 214 shows he was separated on 26 September 1991 with a BCD.  He was credited with 1 year, 1 month, and 29 days of net active service this period.  He had 261 days of time lost due to AWOL and confinement from 12 May 1990 through 11 June 1990 and from 22 June 1990 through
6 February 1991.

10.  A review of the FSM's available military service records failed to show any evidence that he was found to have any unfitting medical condition(s).

11.  In support of the application the applicant provides copies of the FSM's medical records and hospital notes, along with government assistance, rehabilitation, and special-needs records that show he was involved in a motor vehicle accident in 1983 that led to tremors at about the age of 17.  The records also show, in pertinent part:

* on 18 April 1983, the FSM was admitted to the hospital following a motor vehicle accident with multiple trauma.  "He had a right temporal depressed skull fracture with the brain exposed, blunt trauma to the abdomen, a left pneumothorax requiring a chest tube as well as an open fracture of the right femur and multiple lacerations and abrasions."

* on 13 May 1983, "Impressions:  In all likelihood this patient did develop some stress ulceration related to his head injury which was partially treated with Tagamet and later with the addition of antacids."

* on 2 May 1984, D____ H. J____, Ph.D, conducted a psychological evaluation of the FSM.  He concluded, "In summary, [FSM] has shown a good recovery from his brain injury that occurred in an accident in April 1983.  His level of intellectual functioning is within the normal range and has returned to premorbid levels.  Academic achievement is a problem area, but may well have been a problem before his injury.  [FSM] has evidence of depression and poor emotional control, especially of anger and is in need of counseling.  Diagnostic Impression:  (1) normal intellectual functioning (good recovery from brain injury), (2) situational depression, and (3) adjustment disorder."

* on 28 August 1985, he received an outpatient evaluation to consider him for admission to the head injury rehabilitation program after being given a diagnosis of post-traumatic epilepsy secondary to severe depressed skull fracture and cerebral contusion.  It shows, "[a]t the present, the [applicant] is by himself and the history is as given by him."


* on 22 November 1985, W. J____ D____, Medical Doctor, Roosevelt Warm Springs Institute for Rehabilitation, noted, "The patient also made good physical recovery; however, he has been left with residual problems with some of his cognitive functions."

* on 5 August 1986, seen for "dizzy spells and old head injury 3 years ago."

* on 8 April 2014, a diagnosis of "intracranial injury of other and unspecified nature with open intracranial wound, unspecified state of consciousness"

* on 9 May 2014, a notation of a medical history of "TBI, tremor."

* on 10 October 2014, Associate Pastor, Reverend R____ E. F____ affirmed the FSM is homeless and confirms he was diagnosed with TBI.

12.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel.

   a.  Chapter 3 provides that a member will be given a dishonorable or a bad conduct discharge 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 executed.

	b.  Chapter 3, 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.

13.  Title 10, U.S. Code, section 1552, the authority under which this Board acts, provides that the Board 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 contends the FSM's request for upgrade of his BCD to a general, under honorable conditions discharge should be reconsidered because
he had an unknown, unfitting pre-existing medical condition (i.e., TBI) prior to entering military service and he was discharged (in part) for falsifying government records.
2.  The evidence of record shows the FSM was involved in an automobile accident in April 1983 and that he received medical treatment for his injuries.
It also shows, on 28 August 1985 (when the FSM was 20 years of age and prior to enlisting in the U.S. Army), he received an outpatient evaluation to consider him for admission to a head injury rehabilitation program.  Thus, the contention that the FSM was unaware of the diagnosis pertaining to his head injury at the time he entered military service is not supported by the evidence of record.  (It is noted that the evidence of record shows the first time the applicant sought medical care during his military service for a pre-existing head injury was shortly after he was convicted by the court-martial.)

3.  The evidence of record fails to support the applicant's contention that the FSM was discharged for falsifying government records.  In fact, the evidence of record shows the additional charge of signing an official record (i.e., Report of Medical History) was dismissed without prejudice to the government (i.e., the government could refile the charge at a later date).

4.  The FSM's trial by general court-martial was warranted by the gravity of the offenses for which he was charged.  Conviction and discharge were effected in accordance with applicable law and regulations and the FSM's rights were protected throughout the court-martial process.

5.  The evidence of record shows the CMR considered the issues raised by the FSM (and his counsel) and the CMR found them to be without merit.

6.  There is no evidence of record that shows the FSM was diagnosed with any unfitting medical condition(s) during the period of service under review.  In addition, the contention that the FSM's medical condition led to his indiscipline is not supported by the available evidence.  Moreover, this contention could have been raised during the FSM's court-martial and appellate process and conclusively adjudicated; however, the evidence of record fails to show the FSM raised the issue as a matter in defense and/or mitigation.

7.  The evidence of record shows that less than 6 months after he enlisted in the Army the FSM committed offenses for which he was convicted by a general court-martial.  Thus, his record of service during the period under review did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to a general, under honorable conditions discharge.

8.  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.  Therefore, given his offenses and absent mitigating factors, the type of discharge directed was appropriate.  As a result, clemency is not warranted in this case.

9.  In view of the foregoing, there is no basis for granting his 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 AR20140001469, dated 2 September 2014.




      _______ _   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)                                         AR20140017325



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ABCMR Record of Proceedings (cont)                                         AR20140017325



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