MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            9 August 2001
	DOCKET NUMBER:   AR2001055310

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

	Mr. Carl W. S. Chun		Director	
	Mr. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Ms. Irene N. Wheelwright		Chairperson	
	Mr. Fred N. Eichorn		Member	
	Ms. Gail J. Wire		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

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

APPLICANT REQUESTS:  That he be promoted to the pay grade of E-7 effective 1 October 1997, that he be retired in the pay grade of E-7, that he be paid all back pay and allowances, and that his general court-martial conviction be expunged and all forfeitures be returned to him.

APPLICANT STATES:  In effect, that he was unjustly convicted by a general court-martial for conduct that was a result of his injuries and the medications prescribed to him, that he was unjustly removed from the E-7 promotion standing list, that he received inadequate representation by military counsel, that he was subsequently cleared of the misconduct for which he was convicted of by a general court-martial by chapter 14 proceedings, that he was unjustly barred from reenlistment, and that he was denied due process when the Legal Services Agency failed to identify the failings of the general court-martial.

COUNSEL CONTENDS:  In effect, that the applicant’s case is about the total failure of the military legal system to protect the legitimate interests of the service member.  He goes on to state that the applicant had an impeccable record when he was medically evacuated from Germany to Walter Reed Army Medical Center (WRAMC) for an orthopaedic evaluation of severely debilitating back problems.  He was given Percocet and Valium for pain and while on board the aircraft, something went wrong and the applicant engaged in confrontational conduct with the air crew and upon landing, with the ground crew.  An Inspector General (IG) investigation recommended no action; however, the Commanding General (CG) referred the matter to a general court-martial.  The applicant was convicted of disobeying orders and communicating a threat and his punishment amounted to the same punishment as would be given under Article 15 of the Uniformed Code of Military Justice (UCMJ).  Immediately after the court-martial conviction, separation proceedings were initiated under the provisions of Army Regulation 635-200, chapter 14 for misconduct.  He continues by stating that he entered the case at this point to represent the applicant in the chapter 14 proceedings and found that the defense counsel at his court-martial had failed to introduce evidence of the side effects of the applicant’s medication (bizarre and unpredictable behavior), that he failed to call as a witness a physician who testified at the Article 32 hearing that the medication could have affected his behavior, and that he failed to address the applicant's’ propensity for peacefulness or proclivity for violence when the applicant was known as a mild mannered person with no tendency for violence or belligerence and was considered totally out of character for him.  He also states that the chapter 14 board, by a unanimous vote, found that the applicant did not engage in the very misconduct for which he was convicted of by a general court-martial and voted to retain him in the Army.  Then to add insult to injury, the applicant was barred from reenlistment and was removed from the E-7 standing list when there was no legal basis to do so.  He further states that because the punishment of the general court-martial did not invoke automatic judicial review, the case was reviewed for legal sufficiency by the Legal Service Agency and they failed to identify the failings of the general court-martial.  In finding the case legally sufficient, despite overwhelming evidence to the contrary, they failed to provide either findings of facts or reasons for their decision, something to which the applicant was entitled.  He contends that the applicant’s conviction is bogus and that the Board should overturn the actions of the Legal Services Agency and remove the court-martial conviction from the applicant’s records.  He also contends that he should have been promoted to the pay grade of E-7 and that relief on equitable grounds alone is warranted. 

EVIDENCE OF RECORD:  The applicant's military records show:

That after having served 6 years, 10 months and 9 days of prior active service, the applicant again enlisted in the Regular Army from the Reserve Components on 13 August 1986, for a period of 3 years and training as a food service specialist. He remained on active duty through a series of continuous reenlistments and was promoted to the pay grade of E-6 on 1 November 1989. 

On 28 February 1996, while stationed in Germany, the applicant was medically evacuated to WRAMC for a medical evaluation.  While on the flight, he disobeyed lawful orders from commissioned officers to either sit or lay down while ascending, descending or when turbulence required the fasten seat belt signs to be activated.  The applicant refused the orders, used profanity and allegedly communicated threats to open the door of the plane or to kill anyone who tried to make him comply.  Upon landing, officials along with security police met the plane and the applicant disobeyed a lawful order from a commissioned officer and became combatant when told to board a bus to the terminal.  He insisted on walking across a restricted flight line to the terminal instead of boarding a bus and had to be restrained when he began assaulting flight line members and security police.  He was subsequently transferred to WRAMC and an incident report was completed by the security police at Andrews Air Force Base (AAFB), Maryland on the same day. 

The applicant was subsequently returned to his unit in Germany, continued to undergo treatment by military physicians and was eventually referred to a German physician who was a neuro-surgeon who specialized in the treatment of spinal injuries (herniated disc) that the applicant was suffering from.  The applicant underwent surgery and remained on convalescent leave for approximately 2 months.

On 4 April 1996 the applicant was referred for a mental health evaluation and was found to be mentally responsible, able to distinguish right from wrong and to adhere to the right.

On 20 May 1996 the appropriate authority approved a local bar to reenlistment against the applicant and indicated that the applicant was to be removed from the E-7 promotion list if warranted.

On 24 May 1996, the Office of Inquiries and Complaints at AAFB completed an investigation of complaints made by the applicant that he had been incorrectly processed as a litter patient during the evacuation flight, that flight medical personnel behaved unprofessionally and made false statements regarding his behavior, that security personnel at AAFB wrongfully detained him and used excessive force, and that his medical records were wrongfully withheld from him. The investigating officer found that the applicant had been incorrectly processed as a litter patient when his records indicated that he was an ambulatory patient but that the remainder of his complaints were unsubstantiated.  The investigating officer found that the applicant acted belligerently and was combative both in the air and on the ground at AAFB.  However, because of his back pain and no previous history of a combative nature, no disciplinary action was recommended.

On 9 September 1996, charges were preferred against the applicant for two specifications of disobeying lawful orders from two commissioned officers both during the evacuation flight and upon landing at AAFB, for resisting apprehension by an Armed Forces policeman, for communicating a threat to a commissioned officer, and for assaulting and intimidating commissioned and noncommissioned officers during the performance of their duties.

On 17 October 1996, an investigation was conducted under Article 32, UCMJ to investigate the charges and specifications against the applicant.  The applicant appeared before the investigating officer represented by military counsel (a major and a captain).  After hearing the testimony and reviewing the evidence presented, the investigating officer determined that the charges were substantiated and recommended trial by a general court-martial.

On 23 December 1996, an order for a Sanity Board was issued for the purpose of determining the mental capacity and responsibility of the applicant.  The Sanity Board concluded that the applicant did not have a severe mental disease or defect at the time of the alleged incident, that there was no clinical psychiatric diagnosis, that at the time of the incident he did not have a mental disease or defect that would have made him unable to appreciate the nature and quality or wrongfulness of his conduct and that he had sufficient mental capacity to understand the nature of the proceedings as well as conducting his own defense and cooperating intelligently in his own defense. 

On 30 January 1997, the applicant appeared before a general court-martial, plead not guilty to all charges and requested trial by panel (jury).  Testimony was presented by both the prosecution (government) and the defense and on 31 January 1997, he was convicted of two specifications of disobeying a superior commissioned officer and communicating a threat aboard an aircraft.  He was sentenced to a forfeiture of $1,000.00 per month for 6 months and a reprimand. 

A review of the record of trial indicates that the applicant, while on an Aerial Medical Evacuation Flight from Germany to AAFB, refused to obey the instructions of the officer in charge of patients to either sit down or lay down when the fasten seat belt sign was on.  He became belligerent, used profanity, refused medication for pain (Tylenol), threatened to open a door to the plane if the officer persisted and when told that he could be restrained for not only his safety but the safety of the other patients/passengers, he threatened to kill anyone who touched him.  The officer in charge then proceeded to seek intervention from the aircraft commander who was also a commissioned officer.  When confronted by the aircraft commander, the applicant again refused to either sit down or lay down.  The commander offered to make whatever accommodations were necessary to ensure the safety of all passengers, to contact his doctor and/or wife by phone and to provide him medication for pain.  The applicant was uncooperative and refused.  After seeing that the applicant was not going to cooperate, the commander directed two crewmembers to remain with the applicant at all times to ensure safety.  He contacted the commander at AAFB to meet the plane with security police.  When the plane landed at AAFB the commander boarded the plane and without mentioning the incident, explained to the applicant that once the litter bound patients were removed from the plane that he would be required to exit the plane and to board a bus that would take him to the terminal, where he would be fed and his needs cared for.  The applicant exited the plane and began to walk away from the plane in a restricted area.  When officials tried to stop the applicant, he assaulted a security policeman in uniform and several members had to restrain him until he could be handcuffed and strapped to a litter for transport.  It was noted at the time that he displayed, by his combative and aggressive manner, no indication of back pain or lack of mobility.  

The applicant retained a civilian attorney (same counsel who submits his case to the Board) to appeal the appellate examination to the Legal Services Agency.  His counsel cited essentially the same reasons as he has cited to the Board regarding the issue of ineffective counsel and lack of due process.  Counsel submitted matters in the applicant’s behalf on 24 September 1997.

On 23 April 1997 the applicant’s commander initiated action to separate him from the service under the provisions of Army Regulation 635-200, chapter 14, for misconduct.  The applicant appeared before a separation board on 28 August 1997 represented by his civilian counsel.  After reviewing the evidence and hearing testimony, the board recommended that he be retained in service and receive a rehabilitative transfer.  

On 11 February 1998, the Department of the Army Total Army Personnel Command (PERSCOM) administratively removed the applicant from the E-7 promotion standing list in accordance with Army Regulation 600-8-19, based on his court-martial conviction. 

In the process of the appellate review by the Legal Services Agency, the applicant’s lead defense counsel was afforded the opportunity to respond to the allegations that he had been an ineffective counsel.  He indicated, in effect, that a tactical decision was made, with the consent of the applicant, not to present evidence of the applicant’s character trait for peacefulness because the applicant had resisted apprehension by assaulting three security officers and a commissioned officer and attempted to run across the flight line at the airport.  He continued to struggle and resist even after being handcuffed.  If these facts had been presented, assaulting four people and running, it would have undermined the defense of immobility and severe back pain during the flight.  Ultimately, the defense prevailed at trial, gaining the acquittal of the applicant to the Federal offense of interfering with flight crew members.  This offense was of great concern to the defense because it was the most serious and carried the lengthiest period of confinement if convicted.

He further stated that the defense team was also concerned about a previous assault incident in which the applicant had confided that during a break in service he worked as a police officer in Dallas, Texas and was the subject of an investigation that involved a person he arrested, that was subsequently severely beaten in a detention cell.  The applicant indicated that he had caused the injuries (in self-defense), that the incident was widely publicized in the newspapers, and that as a result of the investigation, he had been fired.  Furthermore, the defense interviewed the applicant’s subordinates who indicated that he had a volatile and unpredictable temper, that he overreacted and in some instances abused his authority over them.  The applicant agreed that it was prudent not to “open the door” on this issue and agreed that it was best not to take the stand and have to answer questions during cross-examination of the issue of his reputation for peacefulness. 

The defense counsel went on to state that he did not call the applicant’s physician because the physician had indicated that he believed that the applicant had been dishonest with him and was faking pain to get additional convalescent leave.  At that point the defense counsel and the applicant agreed that it was best to call the German physician who had performed the surgery to testify.

He went on to state that the issue of the effects of Percocet and Valium were thoroughly explored by the defense and consultation with three physicians revealed that, if anything, the drugs would have caused the applicant to act calmly and passively.  Furthermore, the applicant maintained that the pain killers took no part in the incident. 
In regards to the Chapter 14 board proceedings, while he was not part of the proceedings, he offered that the applicable regulation provides that no soldier will be considered for administrative separation because of conduct that has been the subject of judicial proceedings resulting in an acquittal or action the effect thereof.  Therefore, the Government was precluded from using the underlying conduct that led to the charge of interfering with flight crew members and resisting apprehension and thus did not hear the most aggravating circumstances in the case.  Instead, they were limited to the violation of lawful orders to sit or lay down and communication of a threat.  Since the board members were not bound by the rules of evidence, the civilian counsel was allowed to use the results of the Air Force IG investigation that had been precluded from introduction by the defense during the court-martial.  Based on the limited amount of evidence available for use by the government, the civilian defense team had a strong case for retention.

On 20 May 1999, the Legal Services Agency completed its appellate examination of the applicant’s case and determined that it contained sufficient legal and competent evidence to support the approved findings and sentence of the general court-martial.

On 31 October 1999 the applicant was honorably released from active duty in the pay grade of E-6 and was placed on the Retired List, effective 1 November 1999, by reason of voluntary retirement/sufficient length of service.  He had served 20 years, 1 month and 12 days of total active service.

Army Regulation 600-8-19 provides the criteria for removal of individuals from a Department of the Army Centralized Promotion List.  It provides, in pertinent part, that commanders will promptly advise the PERSCOM and provide supporting documentation for administrative removal of individuals from promotion standing lists who have been barred from reenlistment or who have been convicted by a duly constituted court-martial.

Army Regulation 601-280 provides the guidelines for initiating and approving a local bar to reenlistment.  It provides, in pertinent part, that only soldiers of high moral character, personal competence, and demonstrated adaptability to the requirements of the professional soldier’s moral code will be reenlisted in the Army.  The fact that disciplinary or administrative action not resulting in separation has been previously taken does not preclude initiation of a bar to reenlistment procedures if such action is thought proper.  When a soldier has had a completed chapter action and subsequently is recommended for retention, any documents used in that chapter action may be used in a subsequent bar action. 

The Physicians’ Desk Reference (PDR) describes various drugs, their uses and their effects on users.  It provides, in pertinent part, that Percocet is used for the relief of moderate to moderately severe pain and produces a therapeutic value of analgesia and sedation.  The most frequently observed adverse reactions include light-headedness, dizziness, sedation, nausea and vomiting.  Valium is indicated for the management of anxiety disorders or for the short-term relief of symptoms of anxiety.  Valium is used adjunct for the relief of skeletal muscle spasm due to reflex spasm.  Side effects most commonly reported are drowsiness, and fatigue. Infrequently encountered were confusion, constipation, depression, slurred speech and blurred vision.  Paradoxical reactions such as acute hyper-excited states, anxiety, hallucinations, rage, sleep disturbances and stimulation have been reported.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

2.  Trial by court-martial was warranted by the gravity of the offenses charged.  Conviction and punishment were effected in accordance with applicable law and regulations, and the applicant has failed to show that the general court-martial proceedings and sentence were not conducted in accordance with applicable laws and regulations or that the punishment he received was inappropriate for the offenses for which he was convicted. 

3.  The applicant has failed to show through the evidence submitted with his application or the evidence of record that the local bar to reenlistment was improperly initiated or that there was no basis for such a bar under the regulations in effect at the time.

4.  The applicant’s contention that he was unjustly removed from the E-7 Promotion Standing List also appears to be without merit.  The applicant was ineligible for promotion as long as he was under a suspension of personnel actions (flagged) and once he was barred from reenlistment and/or convicted by a court-martial, there was sufficient basis to remove him from the list.  Accordingly, the Board finds no basis to reinstate him to the list or to promote him to that grade.

5.  The applicant’s contention that his conduct was influenced by the medication he was taking is not supported by the evidence submitted with his application or the evidence of record.  Not only has he established that he was using the medication at the time, he has not satisfied the Board with evidence sufficient to show that the drugs had such an effect on him.  The evidence of record clearly shows that he had been prescribed those drugs well before the flight in question, that there was no evidence of previous adverse reactions documented or discussed and that he declined pain medication on the flight.  The Board finds it reasonable to presume that if he were experiencing the pain he claims, he would have taken the pain medication offered him at the time to relieve any or all of the pain.

6.  The Board also finds that the applicant’s contention that he received ineffective counsel and that the Legal Services Agency failed to identify that the court-martial proceedings and conduct of his counsel were flawed is without merit.  The evidence of record clearly shows that the applicant was actively involved in his defense and was aware of and concurred with the strategy used in his defense.  Additionally, he has failed to provide evidence of a convincing nature that suggests that the court-martial proceedings were flawed and that the Legal Service Agency erred in its evaluation of the case.

7.  The applicant’s contention that the Chapter 14 board found him not guilty of the offenses that he was convicted of is also without merit.  While the Chapter 14 board panel was not privy to all of the information made available to the       court-martial panel, they made no such finding and had no authority to make such a finding.  They simply opted to retain him in service and transfer him to another unit in order to give him a second chance at continuing his service.  That board was not bound by the same rules of evidence and as such was not privy to all of the information used in his trial by court-martial.  Accordingly, the board finds that the decision by that board was made based on the information provided to them just as the findings at the trial by court-martial were based on the evidence presented at the time.  

8.  The applicant’s contention that he was unjustly tried by court-martial when the IG recommended no action being taken is also without merit.  The IG recommendation was simply a recommendation and as such does not circumvent a commander’s’ authority to take action in cases where he believes action is warranted.  In this case the CG directed an Article 32 investigation be conducted and once the investigation was completed, he elected to proceed with a trial by court-martial.  Accordingly, the Board finds that the actions in this case were conducted in accordance with applicable laws and regulations with no violations of any of the applicant’s rights. 

9.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

___gw___  ___inw __  ___fe ___  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2001055310	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2001/08/09	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  310	131.0000/PROMOTION	
2.  328	134.0000/VOID CM	
3.		
4.		
5.		
6.