RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  17 May 2007
	DOCKET NUMBER:  AR20060015449 


	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. Gerard W. Schwartz

Acting Director

Mr. Michael J. Fowler

Analyst


The following members, a quorum, were present:


Mr. Eric N. Andersen

Chairperson

Mr. Antonio Uribe

Member

Mr. Rodney E. Barber

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 that his general under honorable conditions discharge be changed to a medical discharge.  He further requests correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) with the period ending 20 January 2005 to show award of the Close Combat Badge [i.e., the Combat Action Badge], the Iraq Campaign Medal, the Overseas Service Ribbon, the Purple Heart, and that the weeks for his Basic Armor Course be changed to 15.

2.  The applicant states, in effect, that his narrative reason for separation should be changed to a medical discharge due to his combat wounds he received while serving in Iraq.  He further states that the above awards should be added to his DD Form 214 and that the length of the  Basic Armor Course should be changed from 10 weeks to 15 weeks in item 14 (Military Education).

3.  The applicant provides a Headquarters, 1st Battalion, 37th Armored Regiment memorandum of record, dated 30 June 2004; a six page Application Summary for Supplemental Security Income, dated 24 October 2006; two Magnetic Resonance Imaging (MRI) examination forms with dates 30 March 2005 and 
1 December 2005; an undated letter from a former fellow Soldier; and a self authored statement to a U.S. Congressman, dated 21 March 2005. 

CONSIDERATION OF EVIDENCE:

1.  The applicant has served in support of Operation Iraqi Freedom (OIF).

2.  The applicant requested correction of his records to show award of the Combat Action Badge.  There are no orders or other evidence authorizing award of this badge to the applicant.  In the absence of a proper award authority for this badge, the applicant has been notified by separate correspondence of the procedures for applying for the badge and, as a result, it will not be discussed further in this Record of Proceedings.

3.  The applicant enlisted in the Regular Army on 20 February 2003 and successfully completed basic training and advanced individual training.  His Enlisted Record Brief (ERB) shows that his one station unit training began on 
27 February 2003 at Fort Knox, Kentucky and it appears it ended on or about 
30 June 2003.  He was awarded military occupational specialty 19K (M1 Armor Crewman).  

4.  The applicant's record reveals a disciplinary history that includes his acceptance of general counseling statements on the following dates:  23 June 2004 for not being at his appointed place of duty; 30 June 2004 for failure to follow instructions; 3 July 2004 for dereliction in performance of duties due to neglect, failure to follow instruction, and not being at his appointed place of duty; 
10 September 2004 for disrespect to a Noncommissioned Officer; and 
13 October 2004 for positive urinalysis test results.

5.  On 19 October 2004, the applicant underwent a mental evaluation by a medical physician who determined that he could distinguish right from wrong and that he possessed sufficient mental capacity to understand and participate in administrative or judicial proceedings.

6.  On 16 November 2004, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for wrongful use of marijuana.  

7.  On 9 December 2004, the applicant’s commander initiated an elimination packet on the applicant for separation under the provisions of Army Regulation 635-200, chapter 14 for misconduct – commission of a serious offense (use of illegal drugs).  The reason cited by the commander was the applicant receiving an Article 15 for unlawful use of marijuana.  The applicant was advised of his rights and the commander recommended the applicant receive a general discharge.

8.  On 9 December 2004, the applicant was advised by consulting counsel of the basis for the contemplated separation action.  The applicant was advised of the impact of the discharge action.  The applicant signed a statement indicating that he was advised he was being recommended for discharge under the provisions of Army Regulation 635-200.  The applicant declined to submit a statement on his own behalf.

9.  On 17 December 2004, the appropriate authority approved the elimination packet and waiver of the rehabilitative transfer requirement and directed the applicant receive a general under honorable conditions discharge under the provisions of Army Regulation 635-200, chapter 14, for commission of a serious offense (use of illegal drugs).  On 18 October 1990, the applicant was separated from the service, in pay grade E-3, after completing 1 year, 11 months, and 
1 day of creditable active service with no lost time.

10.  The applicant's DD Form 214 shows he was awarded the Army Commendation Medal, the "Combat Patch," the Presidential Unit Citation, the National Defense Service Medal, the Global War on Terrorism Expeditionary Medal, the Global War on Terrorism Service Medal, and the Army Service Ribbon.  Item 14 (Military Education) shows the entry "BASIC ARMOR COURSE, 10 WEEKS, JUN 2003//NOTHING FOLLOWS."

11.  There are no general orders in the applicant’s service personnel records that show he was awarded the Purple Heart.  There also is no evidence in his service personnel records that shows that he was wounded or treated for wounds as a result of hostile action in Vietnam.  The applicant's name is not listed on the Iraq Casualty Roster.

12.  The applicant's medical records are not available.

13.  The applicant provided a Tri-State MRI medical document, dated 30 March 2005.  This document shows that he was examined for persistent right knee pain since a combat injury in March 2004.

14.  The applicant provided an account of his wounding, dated 21 March 2005.  He contends, in effect, that his unit fought in Iraq from July 2003 through May 2004 and redeployed to Karbala to take on the Sitars uprising.  While in Karbala he was hit in the right knee and took powder and shrapnel burns to his hands from a rocket propelled grenade.  The applicant states that he was treated for his injuries by a Polish Army physician who sewed up his finger and took care of his leg with sutures and bandages.

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, convictions by civil authorities, desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed and an unfit medical condition is not the direct or substantial contributing cause of his misconduct.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.

16.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.  Paragraph 4-3 states that an enlisted Soldier may not be referred for, or continue, physical disability processing when action has been started under any regulatory provision which authorizes a characterization of service of under other than honorable conditions. 

An exception may be made by the general court-martial convening authority if the disability is the cause, or a substantial contributing cause, of the misconduct that might result in a discharge under other than honorable conditions or other circumstances warrant disability processing instead of alternate administrative separation.

17.  Army Regulation 600-8-22 (Military Awards) states that individuals authorized the Iraq Campaign Medal must have served in direct support of Operation IRAQI FREEDOM (OIF).  The area of eligibility encompasses all land area of the country of Iraq, and the contiguous water area out to 12 nautical miles, and all air spaces above the land area of Iraq and above the contiguous water area out to 12 nautical miles.  The Iraq Campaign Medal period of eligibility is on or after 19 March 2003 to a future date to be determined by the Secretary of Defense or the cessation of OIF.  Service members qualified for the Global War on Terrorism Expeditionary Medal by reasons of service between 19 March
2003 and 28 February 2005, in an area for which the Iraq Campaign Medal was subsequently authorized, will remain qualified for that medal.  Upon application, any such service member may be awarded the Iraq Campaign Medal in lieu of the Global War on Terrorism Expeditionary Medal for such service.  No service member will be entitled to both medals for the same act, achievement or period of service.

18.  The applicant elected to keep the Global War on Terrorism Expeditionary Medal instead of being awarded the Iraq Campaign Medal on 14 May 2007 by phone conversation with the Board analyst.  As a result, this issue will not be discussed further in this Record of Proceedings.

19.  Army Regulation 600-8-22 provides, in pertinent part, that the Purple Heart is awarded for a wound sustained as a result of hostile action.  Substantiating evidence must be provided to verify that the wound was the result of hostile action, the wound must have required treatment, and the medical treatment must have been made a matter of official record.

20.  Army Regulation 600-8-22 states that the Overseas Service Ribbon was established by the Secretary of the Army on 10 April 1981.  The regulation states, in pertinent part, that effective 1 August 1981, all members of the Active Army, Army National Guard, and Army Reserve in an active Reserve status are eligible for the award for successful completion of overseas tours.  

21.  A Frequently Asked Questions document from Human Resources Command (HRC) Military Awards Branch, dated 22 January 2006, contains examples to show Soldiers' eligibility for awards while deployed to Iraq or Afghanistan.  The document states "Question:  How long do I have to serve in Iraq or Afghanistan to be awarded the Overseas Service Ribbon?  Answer:  Overseas tour credit is outlined in Army Regulation 614-30 (Overseas Service).  Provided is a clarification statement the proponent to Army Regulation 614-30 
has provided our office:  Soldiers who serve a minimum of 11 cumulative months or 9 continuous months in Iraq in a temporary change of station/tour of duty status get credit for a complete short tour.  Your reference is Army Regulation 614-30, Tables 3-2, rules 5 and 7.  Iraq and Afghanistan are considered isolated areas where tour lengths have not been established by Department of Defense; therefore, the Army gives equivalent credit for periods of change of station/tour of duty."

22.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  The version in effect at the time stated for item 14 (Military Education), list in-service training course; title, number of weeks, year successfully completed during this period of service; e.g., medical, dental, electronics, supply, administration, personnel, or heavy equipment operations.  This information is to assist the member after separation in job placement and counseling; therefore, training courses for combat skills will not be listed.  

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant contends that his discharge should be upgraded to a medical discharge due to his combat wounds he received while serving in Iraq, there is no medical evidence of record that shows he had any medical condition prior to his discharge on 20 January 2005 that would have rendered him eligible for a medical discharge.

2.  The applicant contends that item 14 his DD Form 214 incorrectly shows his Basic Armor Course length.  While it appears he was at one station unit training (combined basic training and advanced individual training) for 15 weeks, there is no evidence to show the advanced individual training portion was 15 weeks.  In accordance with Army Regulation 635-5, training courses for combat skills will not be listed on the DD Form 214.  It appears that the course was placed on his DD Form 214 in error.  

3.  The applicant met the eligibility criteria for award of the Overseas Service Ribbon.  Therefore, his DD Form 214 should be amended to add this award.

4.  The applicant's claim of entitlement to the Purple Heart was carefully considered.  However, there is insufficient evidence to support this contention.  By regulation, in order to award the Purple Heart it is necessary to establish that a Soldier was injured in action, that the injury required treatment by a medical officer, and that the treatment record must have been made a matter of official record.

5.   Lacking any corroborating evidence of record showing that the applicant was treated for a wound/injury that was the direct result of or caused by enemy action, the regulatory burden of proof necessary to support award of the Purple Heart has not been satisfied in this case.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__ENA __  ___AU   _  __REB__  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 amending his DD Form 214 in item 13 to add the Overseas Service Ribbon. 

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 changing his discharge to a medical discharge, adding the Purple Heart, and changing his Basic Armor Course length to 15 weeks to his DD Form 214.   




_   __ Eric N. Andersen      _
          CHAIRPERSON




INDEX

CASE ID
AR20060015449
SUFFIX

RECON

DATE BOARDED
17 MAY 2007
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
PARTIAL GRANT 
REVIEW AUTHORITY
MR. SHATZER
ISSUES         1.
144.9322.0000
2.
107.0143.0000
3.
107.0140.0000
4.
107.0079.0000
5.

6.