BOARD DATE: 8 December 2016 DOCKET NUMBER: AR20150011513 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X____ ____X____ ____X____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 8 December 2016 DOCKET NUMBER: AR20150011513 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. _____________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. BOARD DATE: 8 December 2016 DOCKET NUMBER: AR20150011513 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 requests an upgrade of his bad conduct discharge (BCD) so that he may obtain Department of Veterans Affairs (VA) disability benefits. 2. The applicant states, in effect, he had completed medical board processing and he was being awarded a VA rating for service connected injuries/disabilities when he was court-martialed and discharged. He also states, in effect: a. He was an honorable Soldier until he was prescribed Percocet for his shoulder injury and became addicted. b. Although Fort Leavenworth, KS, was a hard experience, he was able to get clean and sober and he has stayed clean for his future wife and five children. c. He lives with pain every day, but he has not touched any opiates. d. He is requesting an upgrade of his discharge so that he may be better able to support his family. 3. The applicant provides copies of: * DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings) * DA Form 5892 (PEBLO (Physical Evaluation Board Liaison Officer) Estimated Disability Compensation Worksheet) * Orders 045-0021, from the 3rd Infantry Division, Fort Stewart, GA, dated 14 February 2013 CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of Justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant enlisted in the Regular Army and entered active duty on 24 September 2007. He completed training, was stationed at Fort Stewart, GA, and he was advanced to the rank/pay grade of specialist/E-4 on 20 May 2009. 3. On 19 June 2012, favorable actions were suspended and he was "flagged," due to adverse actions. 4. In January 2013, an informal PEB recommended the applicant be separated with disability severance pay due to post-surgery restricted range of motion of his non-dominant (left) shoulder. A second diagnosis of anxiety disorder not otherwise specified (NOS) was considered not unfitting. The applicant concurred with the findings and recommendation and did not request a formal PEB. According to his orders he was scheduled for separation on 27 March 2013. 5. On 21 March 2013, at a general court-martial, the applicant pled guilty and was found guilty of: a. disobeying a lawful general order by ingesting an artificial cannabinoid commonly known as spice on diverse occasions between 11 September 2011 and 18 April 2012; and b. unlawfully distributing 500 pills of oxycodone (Percocet) between 1 January 2011 and 1 May 2012. 6. On 21 March 2013, the sentence providing for 9 months in confinement was ordered executed. That part of the sentence extending to a BCD was suspended pending a judicial review. The automatic forfeiture of all pay and allowances was ordered waived for 6 months and directed to be paid to the applicant's spouse. 7. On 6 February 2015, the BCD was executed. The applicant had served 6 years, 8 months, and 25 days of active service. This included 423 days of excess leave. His awards included the Army Good Conduct Medal, National Defense Service Medal, Global War on Terrorism Service Medal, and the Army Service Ribbon. 8. During the processing of this case a medical advisory was obtained from the Army Review Boards Agency's staff psychiatrist. She opined that there was no mitigating mental health issue. The applicant was provided the medical advisory opinion for his comment and/or rebuttal. No response has been received. REFERENCES: 1. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the Army's Disability Evaluation System. It states the case of a Soldier charged with an offense under the Uniform Code of Military Justice (UCMJ) or who is under investigation for an offense chargeable under the UCMJ which could result in dismissal or punitive discharge, may not be referred for, or continue, disability processing unless the investigation ends without charges, the officer exercising proper court-martial jurisdiction dismisses the charges, or the officer exercising proper court-martial jurisdiction refers the charge for trial to a court-martial that cannot adjudge such a sentence. 2. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) provides the authority and procedures for administrative separations. a. 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. b. 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. 3. The Table of Maximum Punishments of the Manual for Courts Martial shows that a BCD is authorized for any violation of a lawful general order and for any drug distribution offense. 4. 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: 1. The applicant requests his BCD be upgraded so that he may be able to obtain VA benefits. He implies that his addiction to a prescription drug mitigates his misconduct of distributing a seemingly large quantity of that drug. 2. The ABCMR does grant requests for discharge upgrades solely for the purpose of making an applicant eligible for benefits from other agencies. Each case is considered on its own merits. 3. There is no error or injustice in the fact that the applicant's PEB had been finalized prior to his conviction. Soldiers charged under the UCMJ with offenses authorizing a punitive discharge are prevented from continuing disability separation processing. His sentence to a punitive discharge precluded separation under any other authority. 4. Trial by court-martial was warranted by the gravity of the offenses charged and his conviction and discharge were effected in accordance with applicable laws and regulations. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150011513 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150011513 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2