IN THE CASE OF:	  

		BOARD DATE:	  15 September 2015

		DOCKET NUMBER:  AR20140018593 


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 request for correction of the applicant's records to show –

* upgrade of his bad conduct discharge (BCD) to an honorable discharge
* the separation code and narrative reason for separation as "Secretarial Authority"
* the reentry (RE) code as "RE-1"

2.  Counsel states the request for reconsideration is based on material error and injustice.

   a.  Counsel submits a brief with the same statements of facts in chronological sequence for the period February 2001 through 31 August 2011.  He makes reference to the denial of the initial application by the Army Board for Correction of Military Records (ABCMR) and offers new argument.

   b.  Counsel states the new evidence that was not part of the previous record is the transcript from applicant's Uniform Code of Military Justice (UCMJ), Article 32(b) hearing.  He offers the following:

 	 	(1)  Lieutenant Colonel (LTC) J--- F----, Dwight D. Eisenhower Army Medical Center (DDEAMC), Fort Gordon, GA, testified under direct examination and explained the various medical conditions that affected the applicant, including his initial complaint of presyncope [feeling faint].  LTC F---- testified under cross examination, "After 29 October [2008], [applicant] is non-deployable, no questions asked.  There was clearly something wrong with his shoulder, you can't fake the MRI [magnetic resonance imaging] for that.  There were three specific things that were wrong with his shoulder but those are orthopedic specific so I can't really speak of what those are but it says he has a Hills-sach defect, a bankart lesion and a labral tear."

    	(2)  Ms. T--- N----, physical therapist, testified under cross examination that the MRI showed the Hills-sach deformity, "which is basically a deformity of the bone which is consistent with some sort of dislocation," the bankart lesion, and the labral tear.  She also testified, "That is nothing that he could have faked."

    	(3)  Sergeant First Class (SFC) A--- T----, Individual Ready Reserve (IRR) liaison noncommissioned officer (NCO), testified under direct examination about the lack of communication between himself and the applicant regarding the applicant's status while he was at Fort Gordon and specific reasons why the applicant did not deploy.  SFC T---- assumed the applicant's situation had been communicated to the chain of command.  He testified under cross examination, "Back in May 2008 there was no way units tracked when IRR Soldiers got here, how long they were going to be here and when they left and I didn't have any either."  When SFC T---- saw the applicant in May 2008, the applicant informed him that Camp Shelby was tracking him and it didn't seem unusual to SFC T---- because that would be the gaining unit (installation).  When SFC T---- saw him again a few months later it didn't seem unusual to him and he never reported anything was wrong.  Counsel states that SFC T---- told the applicant he would receive new orders and he should not travel under the expired orders because if he was in an accident while traveling, there would be a legal issue as to whether or not he was traveling on active orders.  Counsel adds that SFC T---- concluded his testimony by stating, "the unit put [applicant] in charge of rehabbing PT [physical training] failures sometime around November-December 2008 and I didn't track him.  I do know that the senior leadership knew [applicant] and said he was doing a great job and that they loved him."

   c.  Counsel concludes that the above testimony from the Article 32(b) hearing provides key insight into the applicant's case.  The two medical professionals explaining that it was impossible for the applicant to fake his injuries and the IRR liaison NCO offering testimony that there was confusion and lack of oversight of IRR Soldiers at Fort Gordon when the applicant allegedly deserted to avoid deploying.  He adds that the applicant was in regular communications with both the health professionals on post and the IRR liaison NCO, but through no fault of the applicant the leadership was entirely unaware of his status.

3.  Counsel provides an 11-page brief with 33 exhibits.  (The initial application was comprised of counsel's 10-page brief with 30 exhibits, which he resubmits with this request for reconsideration, along with the following additional exhibits –

* Exhibit 31 – 10-page brief
* Exhibit 32 – ABCMR Docket Number AR 20130001887, dated 15 October 2013
* Exhibit 33 – Article 32(b) Summarized Proceedings of Investigating Officer's Report (United States versus Applicant)

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 AR20130001887 on 15 October 2013.

2.  The applicant enlisted in the U.S. Army Reserve (USAR) on 4 December 2000 for a period of 8 years.  He further enlisted in the Regular Army on 
6 February 2001 and was –

* awarded military occupational specialty 25P (Microwave System Operator/ Maintainer)
* promoted to sergeant (SGT)/E-5 on 1 April 2005

3.  He was honorably released from active duty on 5 February 2006 and transferred to the USAR Control Group (IRR).

4.  U.S. Army Human Resources Command (HRC), St. Louis, MO, Orders Number M-04-700536, dated 30 April 2007 (as amended), ordered the applicant to active duty at Fort Jackson, SC, with a reporting date of 6 April 2008.

5.  Headquarters, U.S. Army Basic Combat Training Center of Excellence, Fort Jackson, SC, Orders Number 109-86, dated 18 April 2008, reassigned the applicant to a mobilization personnel non-unit at Fort Gordon, GA, with a reporting date of 18 April 2008.

6.  HRC, Orders Number C-04-807818, dated 24 April 2008, reassigned the applicant to Company C, 324th Signal Battalion, Fort Gordon, GA, effective
22 April 2008.
7.  Headquarters, U.S. Army Signal Center and Fort Gordon, GA, Orders Number 116-501, dated 25 April 2008, assigned the applicant to Camp Shelby, MS, with a reporting date of 11 May 2008, with onward movement to Iraq for deployment in support of Operation Iraqi Freedom.

8.  Medical records considered in the initial application show the applicant was seen as an outpatient in the cardiology clinic, DDEAMC, Fort Gordon, GA on 
21 May 2008.  He had subsequent outpatient appointments/visits on 29 May, 
2 June, 4 June, 29 October, 25 November, and 8 December 2008.  Counsel also provided medical records showing the applicant had follow-up appointments/ visits through March 2009.

9.  On 7 May 2009, the applicant was notified of his involuntarily extension on active duty pending the resolution of a formal investigation.  He was then directed to report to Headquarters and Headquarters Company, 15th Signal Brigade, on 11 May 2009, for UCMJ processing.

10.  On 15 May 2009, the Commander, Headquarters, 15th Signal Brigade, 
Fort Gordon, GA, appointed an investigating officer (IO) to conduct an informal investigation under the provisions of Army Regulation 15-6 (Boards, Commissions, and Committees Procedures for IOs and Board of Officers) to investigate the applicant's missed movement to Camp Shelby on or about 
11 May 2008, his whereabouts for the last year, and any underlying circumstances that contributed to him being absent without leave (AWOL).

11.  The IO initially recommended the applicant be given a special court-martial for committing the following offenses –

* AWOL from 10 May 2008 through 12 May 2008
* malingering (in time of war) – in less than a year he had more than 30 documented visits to medical facilities for various medical issues, follow-ups, and consults, to include an officer candidate school physical
* dereliction of duty - he made false statements about his trainee status

12.  The IO was provided guidance to obtain additional evidence from both the reserve and active commands with regard to the applicant's accountability.

13.  On 5 March 2010, the IO recommended the applicant's case be referred to a special court-martial.  However, he acknowledged that the evidence the Government presented was sufficient to warrant a general court-martial.

14.  A DA Form 4430 (Department of the Army Report of Result of Trial) shows the applicant was tried by general court-martial at Fort Gordon, GA, on 24 May 2010.

   a.  He pled guilty and was found guilty of quitting his unit on or about 11 May 2008 and remaining absent in desertion until on or about 7 May 2009.

   b.  He was sentenced to reduction to the rank of private/E-1, confinement for 5 months, and to be discharged with a BCD.  His sentence was adjudged on 
24 May 2010.

15. Headquarters, U.S. Army Signal Center of Excellence and Fort Gordon, Fort Gordon, GA, General Court-Martial Order Number 10, dated 2 November 2010, shows that only so much of the applicant's sentence as provided for reduction in rank to private/E-1, confinement for 4 months, and to be discharged with a BCD was approved.

16.  Headquarters, U.S. Army Fires Center of Excellence and Fort Sill, Fort Sill, OK, General Court-Martial Order Number 98, dated 31 May 2011, confirmed the applicant's court-martial sentence had been affirmed.  The provisions of Article 71(c) having been complied with, the sentence of a BCD was ordered duly executed.

17.  The applicant was discharged as a result of court-martial on 31 August 2011 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 3.

18.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he completed 1 year, 8 months, and 20 days of active service during this period.  It also shows in –

* item 24 (Character of Service), "Bad Conduct"
* item 26 (Separation Code):  "JJD"
* item 27 (Reentry Code):, "4"
* item 28 (Narrative Reason for Separation), "Court-Martial, Other"
* item 29 (Dates of Time Lost During This Period):  "Under 10 USC (United States Code) [Section] 972:  20080511-20090907; 20100524-20100826"

19.  A review of the applicant's military personnel records failed to show any evidence that he was assigned to an advanced individual training (AIT) unit for reclassification out of MOS 25P.

20.  In support of the request for reconsideration counsel provides a copy of the Article 32(b) Summarized Proceedings of IO's Report (U.S. versus Applicant).

   a.  It shows the applicant was informed of his rights and that he was represented by counsel.
   
   b.  The testimony of LTC J--- F----, medical doctor, DDEAMC, shows, in pertinent part, in addition to testimony previously quoted by counsel, LTC F---- testified under direct examination –

* "…on 4 June 2008 he [applicant] was formally medically cleared by cardiology with having no cardiac issues."
* "Based on his medical record, [applicant] was 100%."
* "In my opinion, [applicant] was still medically deployable at that point
[3 September 2008]."
* "What I can tell you is that after reviewing [applicant's] medical records, there are no documented medical findings that would make him non-deployable from 4 June 2008 until 29 October 2008."

   c.  The testimony of Ms. T--- N----, physical therapist, DDEAMC, shows, in pertinent part, in addition to testimony previously quoted by counsel, Ms. N----testified under direct examination –

* "I know [the applicant] because I was working on his shoulder for him at Connelly Clinic back in the end of 2008, his first visit was on
25 November and my last visit with him was on 20 March 2009."
* "When I originally saw [the applicant] on the 25th of November 2008 he told me that he was in AIT with A-5512 reclassifying from [MOS] 25P to 25U."

   d.  The testimony of SFC A--- T----, IRR liaison NCO, shows, in pertinent part, in addition to testimony previously quoted by counsel, SFC T----testified under direct examination –

* "I know the [MOS] 25P course director so I said I would take [applicant] to him so he could get his training completed."
* "[The applicant] should have left 3-4 weeks after he got here to go report to Camp Shelby."


21.  Army Regulation 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel.

   a.  Chapter 3, paragraph 3-11, provides that a member will 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 executed.

   b.  Chapter 3, 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.

	c.  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.

22.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.

   a.  It shows that SPD code "JJD" is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, chapter 3, by reason of court-martial.

   b.  The SPD/RE Code Cross Reference Table stipulates that RE code "4" will be assigned to members who are separated with an SPD code of "JJD" and a BCD.

* RE-1 applies to Soldiers completing their terms of active service who are considered qualified to reenter the U.S. Army.  They are qualified for enlistment if all other criteria are met.
* RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable.  They are ineligible unless a waiver is granted.
* RE-4 applies to Soldiers who are separated from their last period of service with a nonwaivable disqualification.  They are ineligible for enlistment.

23.  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 new evidence and argument that counsel provides on behalf of the applicant in support of reconsideration of his case was carefully considered.

2.  The Article 32(b) Summarized Proceedings of IO's Report (U.S. versus Applicant) show the applicant was informed of his rights and that he was represented by counsel.

   a.  The evidence presented by counsel based on testimony by the three witnesses under cross examination at the Article 32(b) hearing was considered.  Their testimony under direct examination was also considered.  As such, a more complete representation of their testimony is gained when considered in total, including the fact that the applicant was considered medically deployable during the period May 2008 through October 2008.

   b.  The IO for the Article 32(b) proceedings recommended the applicant's case be referred to a special court-martial, although the evidence presented was sufficient to warrant a general court-martial.

   c.  The evidence of record shows the applicant's case was referred to a general court-martial.

   d.  Thus, it is reasonable to conclude that the general court-martial convening authority reviewed the contents of the Article 32(b) proceedings, including the testimony of all the witnesses, prior to making the decision that the applicant's offenses merited referral to a general court-martial.

3.  More importantly, the Article 32 testimony is not evidence before the court.  The applicant had the option to plead not guilty, hold the government to its burden of proof, and further develop and present matters in defense, including his medical condition.  He did not do so.  With the advice of counsel, he instead opted to plead guilty.  The decision to plead guilty was his and his alone.  His conviction was affirmed on appeal.   And, any ineffective assistance of counsel claim, if raised, was determined to be without merit or the conviction would have been overturned.

4.  The evidence of record shows the applicant's discharge pursuant to an approved sentence of a general court-martial was proper and administratively correct.  In addition, all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Therefore, considering all the facts of the case, it is concluded that the type of discharge, separation authority, narrative reason for separation, separation code, and RE code shown on the applicant's DD Form 214 are proper and correct.

5.  The evidence of record shows the applicant committed an offense for which he was convicted by 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 either an honorable discharge or a general, under honorable conditions discharge.

6.  In view of the foregoing, it is concluded that there is no evidence of material error or injustice in the applicant's case.

7.  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 during the period of service under review, and absent any mitigating factors, the type of discharge directed and the reasons were therefore appropriate.  As a result, clemency is not warranted in this case.

8.  Therefore, In view of all of the foregoing, there is an insufficient evidentiary basis for granting the 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 AR20130001887, dated 15 October 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)                                         AR20140018593



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ABCMR Record of Proceedings (cont)                                         AR20140018593



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