RECORD OF PROCEEDINGS


	IN THE CASE OF:	


	BOARD DATE:	  19 July 2007
	DOCKET NUMBER:  AR20070000274 


	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.


Ms. Catherine C. Mitrano

Director

Ms. Jeanne Marie Rowan

Analyst

The following members, a quorum, were present:


Mr. John T. Meixell

Chairperson

Mr. Robert J. Osborn, II

Member

Mr. Michael J. Flynn

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 under other than honorable conditions discharge be upgraded.  The applicant also requests, in effect, award of all combat medals and service badges that he is entitled including the Overseas Combat Service Medal [correctly known as the Armed Forces Expeditionary Medal], Combat Infantryman Badge, Jungle Expert Badge, Heavy Equipment Operator Badge, 82nd Airborne Combat Patch, and Amphibious Warfare School credit.  

2.  The applicant states, in effect, that his military personnel records were destroyed by his sergeant while he was absent without leave from his unit.  He further states that he suffers from anxiety disorders due to his combat experiences, has been denied medical services due to his characterization of service, and that his DD Form 214 (Certificate of Release or Discharge from Active Duty) is unjust.  

3.  The applicant provides a personal statement, a hospital discharge summary, and a recent medical treatment plan in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 26 February 1985, the date of discharge.  The application submitted in this case is dated 26 December 2006.

2.  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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant's records show he enlisted in the Regular Army on 12 July 1982.  Records show that he completed basic combat and advanced individual training and was awarded the military occupational specialty 12B (Combat Engineer).  The highest rank he attained while serving on active duty was private first class/pay grade E-3.

4.  The applicant’s records do not show any significant acts of valor during his military service.

5.  The facts and circumstances of the applicant's discharge are not available for review with this case. 

6.  The applicant's service records reveal a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 29 May 1984, for dereliction of performance of duties on 23 May 1984.  He was sentenced to a forfeiture of 
7 days pay ($162.00) and 7 days extra duty. 

7.  The applicant's service records reveal an extended absence of 175 days from on or about 17 July 1984 to 8 January 1985 when he surrendered to military authorities at Fort Jackson, South Carolina.

8.  Headquarters, XVIII Airborne Corps and Fort Bragg, Order Number 34-12, dated 20 February 1985, shows that the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separation) effective 26 February 1985.

9.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) the applicant was issued at the time of his discharge confirms he was discharged and his characterization of service was under other than honorable conditions.  This form further confirms that he completed a total of 2 years, 1 month, and 21 days of creditable active military service.  This form further shows that he had 177 days of lost time due to being AWOL.

10.  In order to request a discharge under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separation), the applicant must indicate that he understood that by requesting discharge, he was admitting guilt to the charge(s) against him, or of a lesser included offense, that also authorized the imposition of a bad conduct or dishonorable discharge.  He must further acknowledge he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  

11.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statue of limitations.
12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, which a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trail by court-martial.  At the time, general or undesirable discharges were normally considered appropriate.

13.  Army Regulation 635-200, 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

14.  Army Regulation 635-200, 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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

15.  Item 5 (Overseas Service) of the applicant's DA Form 2-1 (Personnel Qualification Record) does not show credit for overseas service.

16.  Item 12f (Record of Service-Foreign Service) of the applicant's DD Form 214 does not show credit for a Foreign Service Tour.  

17.  Item 13 (Decorations, Medal, Badges, Citations and Campaign Ribbons Awards or Authorized) of the applicant's DD Form 214 does not show entries for the Combat Infantry Badge, Jungle Expert Badge, 82nd Airborne Division Combat Patch, Heavy Equipment Operator Badge, or an Amphibious Warfare School Badge.

18.  Item 9 (Award, Decoration & Campaigns) of the applicant's DA Form 2-1 does not show he was awarded the Combat Infantry Badge, Jungle Expert Badge, Heavy Equipment Operator Badge, 82nd Airborne Division Combat Patch or an Amphibious Warfare School credit. 

19.  Item 17 (Civilian Education and Military Schools) of the applicant's Personnel Qualification Record does not show that he attended the Amphibious Warfare School.

20.  Item 27 (Miscellaneous Remarks) of the applicant's DA Form 2-1 shows an entry for "duty in imminent danger pay area (Grenada)" for service from 25 October 1983 to 4 November 1983.  Block 12f (foreign service) of the applicant's DD Form 214 does not show that the applicant received credit for any foreign service.

21.  Item 35 (Record of Assignments) of the applicant's DA Form 2-1 shows the applicant was assigned to B Company, 307th Engineer Battalion (Airborne), Fort Bragg, North Carolina. 

22.  Headquarters, 82nd Airborne Division Permanent Order Number 213-79, dated 7 December 1983, awarded the applicant the Army Commendation Medal for meritorious achievement during the period 28 October 1983 through 2 November 1983.  These orders further show that the award was based on the applicant's service in support of the Grenada Operation.

23.  U. S. Army Infantry Training Center Permanent Order Number 218-5, dated 15 October 1982, awarded the applicant the Parachute Badge.

24.  The applicant provided a personal statement describing the anxiety disorders that he incurred due to his participation in combat operations in Grenada in 1983.  The applicant contends that he has tried to file for medical benefits with the Veterans Administration, but has been denied due to his characterization of service upon his discharge.  The applicant argues that his DD Form 214 is incorrect and does not properly address nor contain all of his unit or personal combat operation tour awards.  

25.  The applicant provided a hospitalization discharge summary from the New Hampshire Hospital, dated 18 February 2005 and an individual treatment plan, dated 29 November 2006 from Tri-County Mental Health which shows that he was diagnosed and treated for Post-Traumatic Stress Syndrome, major depression, alcohol abuse, and marijuana abuse. 

26.  Army Regulation 600-8-22 (Military Awards) provides for award of the Combat Infantryman Badge.  Specifically, paragraph 8-6i specifies that for Grenada (Operation Urgent Fury) individuals must have met the criteria in paragraphs 8-6b and c to be awarded the Combat Infantryman Badge.   These paragraphs state that there are basically three requirements for award of the Combat Infantryman Badge.   The Soldier must be an infantryman satisfactorily performing infantry duties, he must be assigned to an infantry unit during such time as the unit is engaged in active ground combat, and he must actively participate in such ground combat. Specific requirements state, in effect, that an Army enlisted Soldier must have an infantry or special forces specialty, satisfactorily performed duty while assigned or attached as a member of an infantry, ranger or special forces unit of brigade, regimental, or smaller size during any period such unit was engaged in active ground combat.  A recipient must be personally present and under hostile fire while serving in an assigned infantry or Special Forces primary duty, in a unit actively engaged in ground combat with the enemy.

27.  Army Regulation 600-8-22 provides, in pertinent part, that combat and special skill badges are awarded to denote proficiency in performance of duties under hazardous conditions and circumstances of extraordinary hardship as well as special qualifications and successful completion of prescribed courses of training.  Only those badges which are awarded in recognition of military activities are authorized for acceptance and permanent wear.  Badges which do not meet these criteria may be authorized for acceptance, but not for wear, and will not be entered in the official military records of the recipient.

28.  Army Regulation 600-8-22 provides, in pertinent part, for award of the Driver and Mechanic Badge.  To receive award, the individual must qualify and possess a U.S. Government Motor Vehicle Operator's Identification Card, occupy a duty position with the title of operator for a minimum of 12 consecutive months or 500 miles, have no Army motor vehicle accident or traffic violation recorded on the Equipment Operator’s Qualification Record, and must perform satisfactorily for a minimum of 1 year as an active qualified operator.  The driver and mechanic badge approval authority is the brigade commander, battalion commander or any commander in the rank of lieutenant colonel.  Permanent orders are not required to announce award of the Drivers Badge.  Announcement is required through separate memorandum, letter, roster or certificate with the Soldier's name identified in the announcement.

29.  Army Regulation 670-1 (Uniforms and Insignia) governs the requirements for wear of the shoulder sleeve insignia for former wartime service, commonly referred to as a "combat patch".  In pertinent part, the regulation authorizes optional wear of the U. S. Army shoulder sleeve insignia for any former wartime unit in which a Soldier served during a period of eligibility.  Members of the 82nd Airborne Division who participated in combat in Grenada, between 24 October 1983 and 21 November 1983, are authorized to wear the Soldier sleeve insignia or patch of the 82nd Airborne Division.  There are no provisions for entering the shoulder sleeve insignia for former wartime service on the DD Form 214.
30.  Army Regulation 635-5, (Personnel Separations) governs the requirements for listing military education on the DD Form 214.  In pertinent part, the regulation states formal in-service (full-time attendance) training courses successfully completed are listed to assist the Soldier in job placement and counseling, and training courses for combat skills are not listed.  The source documents for preparation of DD Form 214 are the Soldiers DA Form 2-1. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded because his characterization of service is unjust and he has been denied Veterans Administration medical benefits.

2.  The applicant's record shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trail by court-martial.  Therefore, it is presumed in this case that the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

3.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to a general discharge or an honorable discharge.

4.  The applicant contends that he is entitled to overseas combat service credit for his combat tour in Grenada from 25 October 1983 to 4 November 1983.  The applicant was awarded the Armed Forces Expeditionary Medal (AFEM) for his unit's participation in the Joint Chief's of Staff Operation "Urgent Fury" located in the country of Grenada for the stated period of combat service.   The applicant's DD Form 214 does not indicate foreign service in Block 12F (Foreign Service), therefore he is entitled to correction of his DD Form 214 to show 9 days of foreign service for his service on Grenada.

5.  The applicant contends that he is entitled to award of the Combat Infantryman Badge (CIB) for his participation in Grenada.  There is no evidence in the available records which show that the applicant was assigned an infantry MOS, satisfactorily performed infantry duties, assigned to an infantry unit and engaged in active ground combat.  Therefore, he does not meet the criteria for award of the Combat Infantryman Badge.  

6.  The applicant contends that he is entitled to award of the Jungle Expert Badge. There is no evidence in the available military service records and the applicant has not provided evidence which shows that he satisfactorily completed the requisite requirements. 

7.  The applicant contends that he is entitled to award of the Heavy Equipment Operators Badge for his duties as a heavy equipment operator in an engineer company.  There is no evidence in the military service records and the applicant has not provided evidence which shows that he satisfactorily completed the requisite requirements. 

8.  The applicant contends that he is entitled to recognition for Amphibious Warfare School.  There is no evidence in the available military service records and the applicant has not provided evidence which shows that he satisfactorily completed the requisite requirements. 

9.  The applicant contends that he is entitled to wear the 82nd Airborne Division shoulder sleeve insignia for combat operations in Grenada.  The applicant's record shows he is authorized to wear the 82nd Airborne Division shoulder sleeve insignia also known as the "combat patch".  Therefore, there is no corrective action required.

10.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 26 February 1985; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 25 February 1988.  Although the applicant did not file within the ABCMR's statute of limitations, it is appropriate to waive failure to timely file based on the facts in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

_JTM___  _RJO____  _MJF____  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 and to excuse failure to timely file.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending Block 12f of his DD Form 214 to show the entry "00 00 09."

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 upgrade of his discharge, award of the Combat Infantryman Badge, Jungle Expert Badge, Heavy Equipment Operators Badge, the Amphibious Warfare School and wear of the 82nd Airborne Division shoulder sleeve insignia.




__John T. Meixell_________
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.