PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:            1 March 2000                  
	DOCKET NUMBER:   AR1999028710

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Leland A. Edwards		Analyst	

  The following members, a quorum, were present:

	Mr. George D. Paxson  		Chairperson	
	Mr. Melinda M. Darby		Member	
	Mr. John Saputo		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that his Bad Conduct Discharge be upgraded and that his reason for discharge be changed to medical disability.

3.  The applicant states, in effect, that the military judge ruled incorrectly on a defense motion in his case; that his commanding officer said that he should not be tried by a court-martial.  In support of his request, he provides:  numerous PM Forms 9, Report of Observation/Disciplinary Infraction; a copy of an addendum to medical board proceedings dated 3 July 1990; a copy of a handwritten note stating that he was taking a prescription antidepressant; copies of various correspondence from his defense counsel; copies of SF 513, Consultation Sheet, from Walson Army Community Hospital, Fort Dix, New Jersey; and various other documents related to his medical problems.

4.  The applicant’s military records show that he enlisted in the Regular Army for 3 years on 6 March 1986.  Following training as a cavalry reconnaissance scout, he was assigned to the 11th Armored Cavalry Regiment in Germany, arriving there on or about 1 July 1986.

5.  In November 1986, the applicant injured his left wrist while loading missiles onto a Bradley Fighting Vehicle.  The injury was initially diagnosed as a sprain resulting from a hyperextension of the left wrist.  The injury continued to trouble the applicant and, in January 1987, the diagnosis was changed to a perilunate dislocation.  In July 1987, he underwent an open reduction operation that was aborted without success after 6 hours.  In August 1987, he underwent an STT (scaphoid-trapezium-trapezoid) fusion in a German hospital.  He was placed in a long-arm cast until February 1988.

6.  Following his surgery in a German hospital, the applicant was returned to the United States and assigned to the Casual Detachment, Transition Processing Company, Fort Dix, New Jersey, on 1 October 1988.  It is unknown exactly what transpired while he was assigned to Fort Dix, however he did receive therapy for his wrist injury through the Occupational Therapy Section at Walson Army Community Hospital.  In January 1989, the applicant was reassigned to the Medical Holding Company, Walter Reed Army Medical Center (WRAMC), Washington, D.C..  He arrived at WRAMC without medical records and as late as 7 July 1989, Walter Reed was attempting to obtain them from Fort Dix.

7.  At WRAMC, the applicant underwent a series of medical procedures and evaluations that caused his 5 March 1989 ETS (expiration of term of service) date to be extended several times.  He also encountered disciplinary problems involving AWOL and drug abuse which resulted in numerous administrative actions, as well as nonjudicial and judicial actions under the Uniform Code of Military Justice (UCMJ).

8.  The applicant went AWOL from 14-28 July 1989.  On 14 September 1989, he was placed in pretrial confinement at the US Army Correctional Facility, Fort Meade, Maryland, and charged with being AWOL, larceny, and communicating a threat.  He remained in pretrial confinement for approximately 5 months until he was brought before a general court-martial on 6 February 1990 at which time all charges against him were dismissed.

9.  The applicant underwent surgery on 5 April 1990 for a left proximal row carpectomy.  Following his surgery, he appeared before a Medical Evaluation Board (MEB) on 23 May 1990.  The Board determined that he suffered from a failed STT fusion and recommended that he be referred to a Physical Evaluation Board (PEB).

10.  Sometime in the March-May 1990 time frame, the applicant’s chain of command initiated action to separate him under the provisions of Chapter 14, AR 635-200, for misconduct.  The initial basis for this action was the applicant’s prior AWOL of 14-28 July 1989; however, the applicant added to the misconduct charges by receiving nonjudicial punishment (NJP) under Article 15, UCMJ, on 30 May 1990 for failing to go to his place of duty and disobeying a lawful order, and on 19 July 1990 for failing to obey written instructions.  He also received negative counseling statements for being AWOL from his place of duty on 30 May 1990 and 7 June 1990, for having a dirty barracks room on 23 July 1990, and for disobeying a lawful order on 8 October 1990.  The separation action dragged on until 8 January 1991 at which time a board of officer recommended that the applicant be separated with a general discharge.  That recommendation was not approved and a new separation action under Chapter 9, AR 635-200, drug abuse rehabilitation failure, was initiated on or about 14 January 1991.  There is no record that the Chapter 9 action was ever completed.

11.  The applicant was charged with being AWOL from 20-26 November 1990 and 27-28 November 1990.  When he returned, he was given a urinalysis test that was positive for cocaine use during the period 19-26 November 1990.  Charges were once again preferred against him and he appeared before a special court-martial on 9 October 1992.  He was convicted of AWOL and use of cocaine, and found not guilty of larceny by writing dishonored checks.  He was sentenced to a BCD.

12.  The applicant was separated with a BCD on 9 October 1992.  He was credited with 6 years, 2 months, and 6 days of active service and 152 days of lost time for pretrial confinement and AWOL.  He was never given a PEB because all of the chain of command’s administrative separation processing and UCMJ actions effectively suspended his medical processing.

13.  The Military Justice Act of 1983 (Public Law 98-209), provides, in pertinent part, that military correction boards may not disturb the finality of a conviction by court-martial.

CONCLUSIONS:

1.  The applicant’s conviction and discharge were effected in accordance with applicable law and regulations; his contentions relate to evidentiary and procedural matters which were finally and conclusively adjudicated in the court-martial appellate process.  However, the discharge appears overly harsh given the applicant’s prior good service and his 3-year extension beyond ETS because of his medical problems. 

2.  The applicant was a good soldier who suffered a serious wrist injury while performing duties in Germany.  Army medical personnel initially misdiagnosed the injury as a sprain, then later performed an unsuccessful open reduction operation.  He was next sent to a German hospital where an unsuccessful STT fusion was performed.  He ultimately ended up at WRAMC in January 1989, 2 months before his scheduled ETS date, for treatment and/or medical disability separation processing which ground on for 3 years.

3.  During his assignment to WRAMC, the applicant became a disciplinary problem, and his indiscipline was poorly handled by his chain of command.  Approximately 2 months after a 2-week AWOL, he was placed in pretrial confinement for 5 months before appearing before a general court-martial on charges of AWOL, larceny, and communicating a threat.  All charges were dismissed.  His chain of command then initiated an administrative separation action based on misconduct that took 1 year to arrive at a recommendation. When a board of officers recommended separation with a general discharge for misconduct, that action was rejected and a new action was initiated to separate the applicant as a drug abuse rehabilitation failure.  There is no record of the latter action ever being completed.

4.  The 5-month period that the applicant spent in pretrial confinement awaiting trial by a general court-martial was counted as lost time on his DD Form 214, Certificate of Release or Discharge From Active Duty.  Since he was not convicted and all charges were dismissed, the time spent in confinement should not have counted as lost time.  His DD Form 214 is incorrect in that regard.

5.  The applicant went AWOL a second time in November 1990.  Upon his return to his unit, he tested positive for cocaine use on a urinalysis test.  Two years later, he was tried by a special court-martial, convicted of AWOL and use of cocaine, and sentenced to a BCD. 

6.  Although the applicant’s injured left wrist was operated on at WRAMC in April 1990 and an MEB recommended that he be given a PEB, physical disability processing was never completed as his chain of command sought instead to separate him for misconduct and drug abuse.  The chain of command was unsuccessful in separating the applicant until a special court-martial convicted him of 6 days’ AWOL and use of cocaine.

7.  The applicant spent almost 3 years at WRAMC being repeatedly extended beyond his ETS date for medical treatment and/or disability separation processing.  Had he not elected to undergo further treatment or medical processing, the applicant would have been honorably discharged on 5 March 1989.

8.  While the Board cannot, by law, disturb the finality of a court-martial conviction, it can mitigate the punishment when deemed appropriate.  In this situation, the applicant’s more than 3 years of good prior service, coupled with his chain of command’s unconscionable delays in treating his medical problems or processing his disability separation, and the lack of a timely response to his judicial processing justifies mitigation.  It would, therefore, be unjust and inequitable to continue to cause the applicant to suffer the stigma of a BCD based upon a 6-day AWOL and a positive urinalysis test that occurred 18 months after he should have been discharged by reason of ETS.

9.  In view of the foregoing, the applicant’s records should be corrected, but only as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by:

	a.  voiding the BCD of 9 October 1992 now held by the individual concerned and replacing it with a General Discharge of the same date; and

	b.  removing the period of lost time from 890914-900205 and crediting him with a like amount of good time in Item 21c, DD Form 214.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__mmd__  __js____  ________  GRANT AS STATED IN RECOMMENDATION

___gdp__  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__GEORGE D. PAXSON__
		        CHAIRPERSON

INDEX

CASE ID	AR1999028710	
SUFFIX		
RECON		
DATE BOARDED	20000301	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	19921009	
DISCHARGE AUTHORITY	AR 635-200	
DISCHARGE REASON	A74.00	
BOARD DECISION	GRANT PLUS	
REVIEW AUTHORITY	DASA	
ISSUES         1.	105.0000	
2.	110.0000	
3.		
4.		
5.		
6.