RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            15 JUNE 2006
      DOCKET NUMBER:   AR20050015092


      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. Jessie B. Strickland          |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. John Meixell                  |     |Chairperson          |
|     |Mr. Jeffrey Parsons               |     |Member               |
|     |Mr. Jeanette McPherson            |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that the record of nonjudicial
punishment (NJP) (DA Form 2627) dated 18 December 2003 be removed from his
Official Military Personnel File, that the punishment be set aside, that he
be reinstated to the pay grade of E-7 with entitlement to all back pay and
allowances and credit for time served for the period of 29 December 2003 to
25 March 2004 while his unit was in Iraq and award of the National Defense
Service Medal (3rd award), the Global War on Terrorism Expeditionary Medal
(GWOTEM) and the Global War on Terrorism Service Medal (GWOTSM).

2.  The applicant states, in effect, that he was promoted to the pay grade
of E-7 only to have it taken away from him and a suspension of favorable
personnel actions was erroneously backdated to support the action,
accordingly, he should be restored to the pay grade of E-7 with entitlement
to all back pay and allowances and credit for the service he would have
performed with his unit as well as awards he was authorized to receive.

3.  The applicant provides copies of his reports of separation (DD Form
214), copies of his noncommissioned officer evaluation reports (NCOERs),
character affidavits from 29 third parties, a copy of the appointment
memorandum for an investigating officer under Article 32, a copy of his
charge sheet, memorandums transmitting court-martial charges, the
investigating officer’s report, a copy of his record of NJP (DA Form 2627),
a partial copy of his administrative discharge proceedings, the dismissal
of charges against him, a copy of his E-7 promotion orders, a copy of the
Army Discharge Review Board (ADRB) Case Report and Directive, a copy of a
suspension of favorable personnel actions (DA Form 268), a memorandum
clarifying the events surrounding his promotion, and copies of his leave
and earnings statements showing he received pay in the pay grade of E-7.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect that the Board grant the applicant the
relief he seeks and any other relief that flows from the removal of the
adverse documents in his records and the upgrade of his discharge granted
by the ADRB.

2.  Counsel states, in effect, that the ADRB granted the applicant an
upgrade of his discharge to honorable and that testimony was given before
that board to show that the applicant was charged with the mistreatment of
prisoners at Camp Bucca, Iraq, that was not true and that the charges were
trumped up by individuals with motive to lie.  He goes on to state that the
battalion and brigade commanders were discredited and that the applicant’s
promotion was a valid promotion that should not have been revoked.  He also
states that the proceedings of the ADRB hearing were not properly recorded
and cannot be reconstructed; therefore, the Board must confer with the ADRB
regarding the substance of the evidentiary presentation.

3.  Counsel provides no additional documents with the application.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the United States Army Reserve (USAR) under
the delayed entry program (DEP) on 8 February 1985.  He enlisted in the
Regular Army on 12 September 1985 for a period of 3 years and training as a
military policeman.  He completed his training and continued to serve until
he was honorably released from active duty (REFRAD) in the pay grade of E-4
on 12 May 1989, due to the expiration of his term of service (ETS).  He was
transferred to the USAR Control Group (Reinforcement).

2.  On 6 May 1991, he was transferred to a USAR Troop Program Unit (TPU) in
State College, Pennsylvania.  He remained in the USAR through a series of
continuous reenlistments and was promoted to the pay grade of E-6 on
6 November 2000.  He was assigned to the 320th Military Police Battalion in
Ashley, Pennsylvania, and on 4 August 2001, he was ordered to active duty
in support of Operation Joint Forge in Bosnia.  He was released from active
duty on 11 March 2002 and on 10 February 2003, he was ordered to active
duty with his unit and was deployed to Camp Bucca, Iraq, in support of
Operation Enduring Freedom and Iraqi Freedom.

3.  On 8 June 2003, a Criminal Investigation Division (CID) investigation
that was initiated on 14 May 2003 was finalized.  The report was in regards
to an incident regarding enemy prisoners of war (EPW) at Camp Bucca, Iraq,
that occurred on 12 May 2003 and in which 10 members (including the
applicant) were suspected of committing cruelty and maltreatment of EPW,
aggravated assault, conspiracy, dereliction of duty and conduct unbecoming
a military policeman.  Six special agents participated in the investigation
and the investigation established  probable cause to believe that the
applicant and other members of his unit had committed the offenses of
aggravated assault, conspiracy, cruelty and maltreatment of EPW,
dereliction of duty and false swearing when they physically and verbally
assaulted EPWs under their charge during in-processing into the Theater
Internment Facility (TIF).

4.  On 13 July 2003, charges were preferred against the applicant for being
derelict in the performance of his duties in that he willfully failed to
safeguard from assault or abuse captured Iraqi prisoners of war he was
escorting, for eight specifications of maltreatment of enemy prisoners of
war (EPW), for two specifications of aiding and abetting the maltreatment
of EPWs, and one specification of making a false official statement.

5.  On 15 July 2003, orders were published at the 99th Regional Support
Command in Coraoplis, Pennsylvania, which directed that the applicant be
promoted to the pay grade of E-7, effective 1 August 2003, provided he was
in a promotable status on the effective date of promotion.

6.  On 16 July 2003, an investigating officer (a lieutenant colonel from
the 220th Military Police Brigade) was appointed to conduct an
investigation into the charges against the individuals involved in the 12
May 2003 incident (to include the applicant) under the provisions of
Article 32a, Uniform Code of Military Justice (UCMJ).

7.  On 27 August 2003, a hearing under Article 32a was convened and lasted
for several days during which 31 separate witnesses were heard.  The
investigating officer completed the investigation and he found that there
was sufficient evidence to substantiate the charges against the applicant
of dereliction of duty, three specifications of cruelty and maltreatment,
making a false official statement, and three specifications of assault.
The report was finalized and was forwarded to the brigade commander
(appointing authority) on 23 September 2003, with recommendations from the
chain of command for trial by general court-martial.  The brigade commander
also recommended trial by general court-martial and forwarded the
investigation to the commander of the coalition forces at Camp Doha,
Kuwait.

8.  On 20 November 2003, a Report to Suspend Favorable Personnel Actions
(DA Form 268) was signed by the battalion commander that was effective 15
July 2003.  That form was subsequently corrected to reflect an effective
date of 8 November 2003.

9.  On 18 December 2003, nonjudicial punishment (NJP) was imposed against
the applicant by a brigadier general for being derelict in the performance
of his duties by his failure to safeguard from assault or abuse captured
Iraqi detainees, for maltreating of three Iraqi detainees and for making a
false official statement.  His punishment consisted of a reduction to the
pay grade of E-5, a forfeiture of pay, extra duty and restriction.  He did
not appeal the punishment and the imposing commander directed that the
Record of NJP (DA Form 2627) be filed on the performance fiche of the
applicant’s OMPF.  It is also noted that he did not demand trial by court-
martial and he requested a closed hearing.

10.  On 29 December 2003, the applicant’s commander initiated action to
separate the applicant from the service under the provisions of Army
Regulation 635-200, chapter 14 for misconduct – commission of a serious
offense.  A complete copy of the facts and circumstances surrounding his
administrative discharge are not present in the available records.
However, he was discharged under honorable conditions at Fort Dix, New
Jersey on 6 January 2004, under the provisions of Army Regulation 635-200,
paragraph 14-12c for misconduct.  He had served 10 months and 27 days of
active service during his current mobilization.  On 7 January 2004, the
charges against the applicant were dismissed with prejudice.

11.  His DD Form 214 shows that he was awarded the Army Commendation Medal
(3rd award), the Army Achievement Medal (3rd award), the Army Good Conduct
Medal, the Reserve Component Achievement Medal (3rd award), the National
Defense Service Medal (2nd award), the Armed Forces Expeditionary Medal,
the Armed Forces Reserve Medal with “M” Device (2nd award), the
Noncommissioned Officer Professional Development Ribbon with numeral “2”,
the Army Service Ribbon, the Overseas Service Ribbon, the Army Reserve
Components Overseas Training Ribbon (3rd award), and the NATO Medal.

12.  The statement provided by the applicant from the 320th Military Police
Battalion indicates that the applicant’s promotion orders were valid and
given the actions of the Army Discharge Review Board (ADRB), he should be
promoted to the pay grade of E-7.

13.  The applicant applied to the ADRB on 3 August 2004 for an upgrade of
his discharge.  The ADRB determined that his discharge was both proper and
equitable and voted unanimously to deny his request on 30 March 2005.

14.  He again applied to the ADRB and was granted a personal appearance
before that board on 8 August 2005.  After reviewing the available evidence
and testimony given during that hearing, the board determined that while it
did not condone the applicant’s alleged infractions of discipline, the
discharge he received was inequitable when compared to his overall length
and quality of service.  The ADRB voted unanimously to upgrade his general
discharge to an honorable discharge, to change the narrative reason for
separation to that of “Secretarial Authority” and to change his Reentry
Code to a “1”.

15.  The available evidence also shows that the applicant’s battalion and
brigade commanders were subsequently relieved from their assignments due
basically to a lack of leadership.  The investigations conducted prior to
their relief in effect confirmed that prisoners were being abused and that
the commanders did not take the appropriate steps to correct the situation.

16.  Army Regulation 27-10 (Military Justice) prescribes the policies and
procedures pertaining to the administration of military justice.  Chapter 3
implements and amplifies Article 15, UCMJ.  Paragraph 3-16d (4) provides
that before finding a Soldier guilty, the commander must be convinced
beyond a reasonable doubt that the Soldier committed the offense.

17.  Paragraph 3-18 of the military justice regulation contains guidance on
notification procedures and explanation of rights.  It states, in pertinent
part, that the imposing commander will ensure the Soldier is notified of
the commander's intention to dispose of the matter under the provisions of
Article 15. It further stipulates the Soldier will be informed of the
following:  the right to remain silent, that he/she is not required to make
any statement regarding the offense or offenses of which he/she is
suspected, and that any statement made may be used against the Soldier in
the Article 15 proceedings or in any other proceedings, including a trial
by court-martial.  In addition, it states that the Soldier will be informed
of the right to counsel, to demand trial by court-martial, to fully present
his/her case in the presence of the imposing commander, to call witnesses,
to present evidence, to request to be accompanied by a spokesperson, to an
open hearing, and to examine available evidence.

18.  Paragraph 3-28 of the military justice regulation provides guidance on
setting aside punishment and restoration of rights, privileges, or property
affected by the portion of the punishment set aside.  It states, in
pertinent part, that the basis for any set aside action is a determination
that, under all the circumstances of the case, the punishment has resulted
in a clear injustice.  "Clear injustice" means there exists an unwaived
legal or factual error that clearly and affirmatively injured the
substantial rights of the Soldier.  An example of clear injustice would be
the discovery of new evidence unquestionably exculpating the Soldier.

19.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions)
prescribes the Army's enlisted promotions and reductions policy.  Paragraph
1-10 outlines when Soldiers are in a non-promotable status.  It states, in
pertinent part, that Soldiers are in a non-promotable status if they are
undergoing proceedings that may result in an administrative elimination.

20.  The promotions regulation further stipulates that Soldiers who are
Flagged under the provisions of Army Regulation 600-8-2 are in a non-
promotable status, and that the failure to initiate a DA Form 268 does not
affect the Soldier's
non-promotable status, if a circumstance exists that requires the
imposition of a FLAG action.

21.  Army Regulation 600-8-2 (Suspension of Favorable Personnel Actions
(Flags) prescribes the policies regarding suspension of favorable personnel
actions (FLAGs).  Paragraph 1-12 outlines the circumstance that require a
FLAG action.  It states, in pertinent part, that a non-transferrable FLAG
is required when a member is under charges, restraint, or investigation.
It stipulates that the FLAG action will be removed when the Soldier is
released without charges, charges are dropped, or punishment is completed.
It further states that a FLAG is required based on NJP action, and that the
FLAG will be removed upon completion of punishment.  It further states that
a FLAG is required when a field elimination action is initiated, and the
FLAG will be removed when a Soldier is reassigned to the transition point.


22.  Army Regulation 600-8-22 (Military Awards) as amended provides that
the National Defense Service Medal (NDSM) is awarded for honorable active
service for any period between 27 July 1950 through 27 July 1954, 1 January
1961 through 14 August 1974, 2 August 1990 through 30 November 1995 and 11
September 2001 to a date to be determined.  This regulation also provides
that the second and subsequent awards of the National Defense Service Medal
are denoted by a bronze service star affixed to the National Defense
Service Medal.

23.  Human Resources Command Message (Date Time Group 17 March 2004)
disseminated implementing instructions for award of the Global War on
Terrorism Expeditionary Medal for soldiers who deploy abroad for service in
the Global War on Terrorism Operations on or after 11 September 2001 to a
date to be determined.  To be eligible for this award a Soldier must be
mobilized with or assigned or attached to a unit participating in
designated operations for 30 consecutive days or for 60 nonconsecutive days
in the areas of eligibility designated, or must meet one of the following
criteria: a)  be engaged in actual ground combat against the enemy and
under circumstances involving grave danger of death or serious bodily
injury from enemy action, regardless, of the time in the area of
eligibility; b) while participating in the designated operation, regardless
of time, is killed or wounded/injured requiring medical evacuation from the
area of eligibility, or c) participate as a regularly assigned air crew
member flying sorties for 30 consecutive days or 60 nonconsecutive days
into, out of, within, or over the area of eligibility in direct support of
Operations Enduring Freedom and/or Iraqi Freedom.  The message also states
that under no condition will any Soldier in the United States receive this
award.

24.  Soldiers may receive both the Global War on Terrorism Service Medal
and the Global War on Terrorism Expeditionary Medal if they meet the
requirements of both awards; however, the same period of service
establishing one cannot be used to justify service eligibility for the
other.

25.  The Human Resources Command Message (Date Time Group 17 March 2004)
limited initial award of the Global War on Terrorism Expeditionary Medal to
Soldiers who deployed abroad in Operations Enduring Freedom and Iraqi
Freedom in the following areas of eligibility (AOE):  Afghanistan, Bahrain,
Bulgaria (Bourgas), Crete, Cyprus, Diego Garcia, Djibouti, Egypt, Eritrea,
Ethiopia, Iran, Iraq, Israel, Jordan, Kazakhstan, Kenya, Kuwait,
Kyrgyzstan, Lebanon, Oman, Pakistan, Philippines, Qatar, Romania
(Constanta), Saudi Arabia, Somalia, Syria, Tajikistan, Turkey (east of 35
east degrees east latitude), Turkmenistan, United Arab Emirates,
Uzbekistan, Yemen, that portion of the Arabian Sea north of 10 degrees
north latitude and west of 68 degrees longitude, Bab El Mandeb, Gulf of
Aden, Gulf of Aqaba, Gulf of Oman, Gulf of Suez, that portion of the
Mediterranean Sea east of 28 degrees east longitude, Persian Gulf, Red Sea,
Strait of Hormuz, and Suez Canal.

26.  Human Resources Command Message (Date Time Group 17 March 2004)
disseminated implementing instructions for award of the Global War on
Terrorism Service Medal.  This award is designated for Soldiers who have
participated in or served in support of Global War on Terrorism Operations
outside of the designated area of eligibility determined for award of the
Global War on Terrorism Expeditionary Medal on or after 11 September 2001
to a date to be determined.  All Soldiers on active duty, including Reserve
Component Soldiers mobilized or National Guard Soldiers activated, on or
after 11 September 2001 to a date to be determined having served 30
consecutive days or 60 nonconsecutive days are authorized this award.

27.  Battalion commanders and commanders of separate units are authorized
to award the Global War on Terrorism Service Medal to qualified personnel.
Permanent orders are NOT required.






DISCUSSION AND CONCLUSIONS:

1.  It appears that the NJP was imposed in compliance with applicable laws,
regulations, and policies by a commander empowered to do so.  The
punishment was not disproportionate to the offenses and there is no
evidence of any violations of the applicant’s rights.

2.  The applicant’s contention that the actions by the ADRB to upgrade his
discharge and the testimony given before that board serve to show that he
was not guilty of the misconduct for which he was accused has been noted
and found to be without merit.

3.  The ADRB upgraded the applicant’s discharge based on a matter of
equity.  That board clearly delineated that it did not condone the
applicant’s infractions of indiscipline; however, it believed that his
discharge was too harsh considering his overall record of service.
Accordingly, there is no basis to set aside or remove the record of NJP.

4.  The applicant’s contention that his promotion to the pay grade of E-7
was improperly taken away from him because the flagging action occurred
after his promotion has been noted and found to be without merit.  Court-
Martial charges were preferred against the applicant on 13 July 2003 in
Iraq, 2 days prior to orders being published in Pennsylvania.  Accordingly,
the applicant was not in a promotable status either at the time the orders
were published or on the effective date, regardless whether the paperwork
had been accomplished to flag him.  Accordingly, there is no basis to
restore him to the pay grade of E-7.

5.  The applicant’s contention that he is entitled to be awarded the third
award of the NDSM has been noted and found to be without merit.  The
applicant has served on active duty during two periods in which the NDSM
has been authorized and his records correctly reflect two awards.
Accordingly, there is no basis to award him a third award of the NDSM.

6.  The applicant’s contention that he is entitled to the award of the
GWOTEM has been noted and found to have merit.  The applicant served on
active duty in support of Operation Enduring Freedom and Iraqi Freedom in
the area of eligibility.  Accordingly, he is entitled to be awarded the
GWOTEM for that service.



7.  However, the applicant is not entitled to be awarded the GWOTSM as he
contends because the applicable guidelines for that award specify that the
same period of service cannot be used for both the GWOTEM and the GWOTSM.
Therefore, since he is being awarded the GWOTEM, he is not entitled to be
awarded the GWOTSM.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

____JM _  ____JP__  ____JM _  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for partial relief.  As a result, the Board
recommends that all Department of the Army records of the individual
concerned be corrected by awarding him the GWOTEM and correcting his
records accordingly.

2.  The Board further determined that the evidence presented is
insufficient to warrant a portion of the requested relief.  As a result,
the Board recommends denial of so much of the application that pertains to
removal of a record of NJP from his records, restoration to the pay grade
of E-7, and awards of the NDSM and GWOTSM.




                                  ______John Meixell_________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050015092                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060615                                |
|TYPE OF DISCHARGE       |(HD)                                    |
|DATE OF DISCHARGE       |20040106                                |
|DISCHARGE AUTHORITY     |AR 635-200, CH 5, PARA 5-3              |
|DISCHARGE REASON        |SECRETARIAL AUTHORITY                   |
|BOARD DECISION          |(PARTIAL-GRANT)                         |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |281/EXPUNGE NJP                         |
|1.126.0400              |                                        |
|2.131.0000              |310/PROMOTION                           |
|3.107.0000              |46/GWOTEM                               |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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