PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:             6 February 2001               
	DOCKET NUMBER:    AR2000036826

	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. Carl W. S. Chun		Director	
	Mr. W. E. Schnupp		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor, Jr. 		Chairperson	
	Mr. Thomas Lanyi		Member	
	Mr. Walter T. Morrison		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 (BCD) be upgraded to a general discharge under honorable conditions.

3.  The applicant states, through counsel, that medical evidence obtained subsequent to his court-martial supports the conclusion that his drastic change in behavior after entering the Army was linked to a head injury he sustained during basic training.  He does not contend that this fact excuses his subsequent conduct, but he believes it explains and mitigates it and justifies an upgrade of his punitive discharge to a general discharge under honorable conditions.  He contends that not doing so will perpetrate a serious injustice, one result of which is his continued ineligibility for medical care from the Department of Veterans Affairs (DVA) for service connected injuries.

4.  The applicant’s military record shows that he enlisted in the Regular Army on 4 September 1997.  He reported for basic training to the US Army Artillery Training Center, Fort Sill but never completed basic or advanced individual training because of medical and/or disciplinary problems.  He was punitively discharged with a BCD on 10 December 1999 with 418 days lost time and 240 days of excess leave.

5.  On 28 September 1997, during basic training, the applicant broke his left foot. In October, while still on crutches with his leg in a cast, he fell down striking his head against a wall.  He was seen the following day by a military physician because of vomiting spells and it was determined that he had suffered a head contusion for which he was prescribed light duty.  Several days later he again reported to the medical clinic because of vomiting episodes.  He was treated for flu symptoms and given light duty.  No inquiry was made to determine if his vomiting was a result of his head injury.

6.  In November 1997, the applicant fell once again and injured his knee.  Due to his fractured foot and knee injury, he was entered into a fitness-training unit delaying his return to regular basic training.  During this recovery period, both his drill sergeant and unit commander expressed their regard for the attitude, effort and the desire he displayed in preparing himself to return to regular training.  His drill sergeant remarked on how impressed he was that the applicant attempted to participate in training even though his leg was in a cast and he was on crutches.

7.  During January 1998, the applicant’s chain of command noted that his attitude and motivation began to decline.  During the month of January alone the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, on four occasions for failure to report and being absent without leave (AWOL).  In February 1998, despite his expressed desire to continue with 

training, he received another NJP for failing to report for duty and not being in his appointed place of duty.  On 17 February, he was apprehended by the military police for alleged forgery and larceny and placed in pretrial confinement.

8.  Because of his behavioral changes and before his court-martial, the applicant’s defense counsel requested a Sanity Board to determine his competency to stand trial.  The board determined that he was free from any mental disease or defect at the time of his alleged misconduct and had sufficient mental capacity to understand the nature of the proceedings and to cooperate intelligently in his own defense.

9.  On 2 June 1998, nine months after his enlistment, the applicant pleaded guilty to multiple specifications of forgery and larceny, AWOL and conspiracy.  He was sentenced by a military judge to a dishonorable discharge, forfeiture of all pay and allowances and confinement for 52 months.  Pursuant to a pretrial agreement, the Convening Authority approved a BCD, forfeiture of all pay and allowances and confinement for 18 months.  No evidence of the applicant’s head injury or subsequent personality and behavioral change was presented at his trial.

10.  The US Army Court of Criminal Appeals affirmed the findings and sentence of the applicant’s court-martial and the US Court of Appeals for the Armed Forces denied his petition for a grant of review.  He was released from confinement on 15 April 1999 and discharged with a BCD on 10 December of that year.

11.  Following the applicant’s release from confinement, his family sought to have him evaluated by doctors specializing in neuropsychology, adolescent neurology, neurophysiology and psychiatry.  These specialists determined that the applicant suffered from some degree of abnormality consistent with previously experienced head injury.

12.  On 18 October 2000 the records in this case were reviewed in the Office of The Surgeon General (OTSG).  The OTSG’s psychiatry, Forensic Psychiatry and Neurology Consultants together with a neurophysiologist and two neuropsychologists stated that the available documentation did not provide convincing evidence that the applicant’s illegal behavior was a result of personality dysfunction precipitated by closed head injury.

13.  The OTSG advisory opinion was provided to the applicant’s counsel for information and possible rebuttal.  On 15 December 2000 counsel submitted 

rebuttal arguments from a team of medical specialists who disagreed with the conclusion of the OTSG and generally contended that the applicant’s behavioral changes were due to brain injury.

CONCLUSIONS:

1.  The evidence of record shows that the applicant suffered a head injury for which he was treated at a military medical treatment facility.  There is no evidence of any follow-up examination of the head injury subsequent to its occurrence.  Whether or not this injury was the basis for his later behavior and legal misconduct is, unfortunately, now mired in voluminous conflicting expert medical opinions.

2.  While the Board appreciates that at times there will be an honest difference of opinion among medical professionals, it appears in this case that no amount of medical evaluation will ever conclusively establish or refute a link between the applicant’s injury and his behavioral change.  However, it does appear that the applicant’s relatively sudden change from good to bad soldier is indicative of something more than just a personality change.  

3.  This Board has no authority to disturb the finality of a court-martial conviction. Nonetheless, in the interest of compassion, and considering that no matter what the Board does, the applicant’s Federal conviction will forever remain on his records, in light of the doubt that surrounds the reasons for his abrupt personality change, it would be equitable to upgrade his BCD to a general discharge under honorable conditions.  Concurrently, his DD Form 214, (Certificate of Release from Active Duty), should also be corrected to reflect the revised nature of his separation and that his change in separation was by reason of Secretarial authority.

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

RECOMMENDATION:

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

a.  revoking the BCD Certificate issued to the individual concerned on 10 December 1999;

b.  issuing to him a General Discharge Certificate effective 10 December 1999; and

c.  reissuing his DD Form 214 to show his character of service as “Under Honorable Conditions (General)”, the separation authority as “AR 635-200, chapter 5” and the narrative reason for separation as “Secretarial Authority”.

BOARD VOTE:  

__rvo____  ___tl___  ____wtm_  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__________Raymond V. O'Connor, Jr.___
		        CHAIRPERSON

INDEX

CASE ID	AR2000036826	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010206	
TYPE OF DISCHARGE	(BCD)	
DATE OF DISCHARGE	19991210	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.  144.68		
2.		
3.		
4.		
5.		
6.