IN THE CASE OF:	  

		BOARD DATE:	       14 APRIL 2009

		DOCKET NUMBER:  AR20080018732 


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, in effect, that block 18 (remarks) on his 2008 DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to show that he completed his first full term of service; that block 28 (narrative reason for separation) be corrected; that the period of lost time between 
15 December 2006 and 27 December 2006 recorded in block 29 (dates of time lost during this period) be removed from his 2008 DD Form 214; and that block 12f (foreign service) be corrected to show his service in Afghanistan.  The applicant also notes that block 13 (decorations, medals, badges, citations and campaign ribbons awarded or authorized) is incorrect but does not specify any specific awards or decorations which were omitted.

2.  The applicant states, in effect, that his initial enlistment contract of 3 years and 19 weeks was unjustly extended to 4 years and as such block 18 (remarks) on his DD Form 214 contains an unnecessary description of his completion of first term of service.  He notes his foreign service in Afghanistan between 2 June 2006 and 2 April 2007 was omitted from block 12f (foreign service) and that block 28 (narrative reason for separation) reflects an unnecessary description of the reason for his separation.  He states that the period of lost time between 
15 December 2006 and 27 December 2006 is unjust.  He states that he was robbed while on leave in Colombia and was unable to return to the United States and finish his “situation in Afghanistan.”  He notes that he was also stuck in Kuwait and Qatar for 8 days because of bad weather and that he called and 
e-mailed his unit to let them know his situation.

3.  The applicant states that he provided a statement for enlistment, a statement of items stolen in Colombia, a letter of transportation issued by the US Embassy, and a copy of a statement signed by his spouse.  However, none of those documents were attached to the applicant’s application.

CONSIDERATION OF EVIDENCE:

1.  Records available to the Board indicate the applicant, who was born in Columbia, enlisted in the Regular Army for a period of 3 years and 19 weeks on 22 September 2005 while residing in New York.

2.  On 24 April 2006 the applicant was counseled by his unit commander for being absent without leave (AWOL) for 32 days commencing on 20 March 2006.  The counseling statement noted the applicant went on “block” leave prior to his battalion’s deployment to Afghanistan and that he failed to return from block leave on time and then remained absent for 32 days.  The applicant acknowledged that he agreed with the counseling statement and made no statements in his own behalf.  The applicant was also counseled that same day for missing movement on 3 April 2006.  The applicant agreed with that counseling statement as well.

3.  In June 2006, while deployed to Afghanistan, the applicant was punished under Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave between 20 March 2006 and 20 April 2006 during “a time of war with intent to avoid hazardous duty, namely deployment to Afghanistan for one year” and missing movement on 3 April 2006.  His punishment included reduction to pay grade E-1, a forfeiture of $617.00 per month for 2 months (one month of which was suspended), and 45 days of extra duty.

4.  On 5 October 2006 the applicant was counseled regarding policies associated with mid-tour leaves for his unit.  He was informed of procedures for contacting his unit in Afghanistan, including a telephone number and an e-mail address, if anything occurred while in a leave status.  The applicant was also informed about the consequences of not keeping his unit informed.  The applicant acknowledged that he agreed with the counseling information.

5.  On 26 January 2007, orders were issued in Bagram, Afghanistan awarding the applicant an Army Commendation Medal for meritorious service during the period 15 April 2006 to 4 April 2007 in support of Operation Enduring Freedom, Afghanistan.

6.  In February 2007, while in Afghanistan, the applicant was punished under Article 15 of the UCMJ for being absent from his place of duty in Bagram, Afghanistan between 15 and 28 December 2007.  His punishment included reduction to pay grade E-1 and a forfeiture of $303.00 pay, both of which were suspended, and extra duty.

7.  On 4 September 2007 the applicant was counseled for not reporting to work at Fort Bragg, North Carolina on time after traveling outside the 250 mile pass radius without authorization and then missing a return flight from Miami because the airport was closed.  The applicant agreed with the counseling and made no statement.

8.  In September 2007 the applicant was punished a third time under Article 15 of the UCMJ for failing to go to his appointed place of duty at Fort Bragg, North Carolina.  His punishment included reduction to pay grade E-1, a forfeiture, extra duty, and restriction.  The UCMJ action was issued at Fort Bragg, North Carolina.

9.  On 24 January 2008 the applicant was counseled by his team leader for being AWOL for “over a week” following block leave in December 2006 and for traveling outside the United States to Bogota, Columbia without authorization.  The team leader also mentioned the applicant’s previous incident of traveling outside the 250 mile travel restriction while on pass in September 2007.  The applicant agreed with the counseling and made no statement.

10.  On 6 February 2008, the applicant acknowledged receipt of his commander’s notification of intent to separate the applicant from active duty under the provisions of Army Regulation 635-200, paragraph 14-12b, for patterns of misconduct.  The applicant’s commander cited the applicant’s three UCMJ actions, numerous counseling statements, including being AWOL a number of times, desertion with intent to avoid hazardous duty, missing movement through neglect, blatantly violating the 250 mile travel restriction, and that he (the applicant) lied to and misled a senior noncommissioned officer, as the basis for the separation action.  The applicant consulted with legal counsel and waived his inherent rights, including the right to present statements in his own behalf.

11.  The appropriate separation authority approved the unit commander’s recommendation on 19 February 2008 and directed the applicant be discharged under the provisions of Army Regulation 635-200, paragraph 14-12b for patterns of misconduct.  The separation authority directed issuance of a general, under honorable conditions discharge.




12.  On 12 March 2008, the applicant was discharged.  At the time of his discharge he had a completed a total of 2 years, 4 months, and 8 days of active Federal service.  Block 13 (decorations, medals, badges, citations and campaign ribbons awarded or authorized) reflect the Army Commendation Medal, Meritorious Unit Commendation, National Defense Service Medal, Global War on Terrorism Service Medal, and Army Service Ribbon as authorized decorations.  Block 12f (foreign service) does not reflect any foreign service, and block 18 (remarks) reflects the statement “member has not completed first full term of service.”  Block 29 (dates of time lost during the period) reflects lost time between 20 March 2006 and 19 April 2006 and between 25 and 27 December 2006.

13.  Block 25 (separation authority) on the applicant’s 2008 DD Form 214 reflects “AR 635-200, PARA 14-12C” with the narrative reason for separation in block 28 reflects “MISCONDUCT, (SERIOUS OFFENSE).”  His separation code in block 26 (separation code) on the 2008 DD Form 214 reflects “JKQ.” 

14.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) establishes the policies and procedures for the separation and discharge of enlisted Soldiers.  Chapter 14 of that regulation provides of the separation or discharge of enlisted Soldiers for misconduct.  Paragraph 14-12b specifically notes that enlisted Soldiers with discreditable involvement with civil or military authorities, or discreditable conduct and conduct prejudicial to good order and discipline including conduct violating the accepted standards of personal conduct found in the UCMJ, Army regulations, the civil law, and time-honored customs and traditions of the Army may be separated based on a pattern of misconduct.  Paragraph 14-12c (commission of a serious offense) provides for the separation of enlisted Soldiers for commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual for Court-martial, including an absentee returned to military control from a status of absent without leave or desertion.

15.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) notes that SPD Code JKQ is appropriate when the authority for separation is AR 635-200, paragraph 14-12c and the narrative reason is “Misconduct (Serious Offense) while SPD Code JKA is appropriate when the authority for separation is AR 635-200, paragraph 14-12b and the narrative reason is “pattern of misconduct.”




16.  Army Regulation 635-5 (Separation Documents) notes the following:

   a.  block 18f (foreign service) on the DD Form 214 will reflect the total amount of foreign service completed during the period covered in block 12c (net active service this period).
   
   b.  Block 18 (remarks) will reflect a statement that the Soldier has, or has not completed first full term of service.  It notes that to determine if an enlisted Soldier has completed the first full term of enlistment, refer to the enlistment/reenlistment documents and compare the term(s) of enlistment to the net service in block 12c of the DD Form 24.  If the Soldier has completed or exceeded the initial enlistment, enter “has.”  If block 12c of the DD Form 214 is less than the Soldier’s initial enlistment, enter “has not.”
   
   c.  Block 18 (remarks) will also reflect the statement “SERIVCE IN (NAME OF COUNTRY DEPLOYED) FROM (INCLUSIVE DATES FOR EXAMPLE, YYYYMMDD-7777MMDD)” for active duty Soldier deployed with his or her unit during their continuous period of active service.

17.  Army Regulation 600-8-22 (Military Awards) states that individuals authorized the Afghanistan Campaign Medal must have served in direct support of Operation ENDURING FREEDOM (OEF). The area of eligibility encompasses all land area of the country of Afghanistan and all air spaces above the land. The Afghanistan Campaign Medal period of eligibility is on or after 24 October 2001 to a future date to be determined by the Secretary of Defense or the cessation of OEF.  Service members must have been assigned, attached, or mobilized to units operating in the area of eligibility for 30 consecutive days or for 60 non-consecutive days.  Bronze service stars affixed to the Afghanistan Campaign Medal denoted participation in designated campaign periods.  Three campaign periods have designated for Operation Enduring Freedom (Liberation of Afghanistan 11September2001-30November2001, Consolidation I (1December2001-30September20060 and Consolidation II (1October2006-TBD). 

DISCUSSION AND CONCLUSIONS:

1.  The evidence confirms that the applicant was in fact deployed to Afghanistan in support of Operation Enduring Freedom.  His award of the Army Commendation Medal and receipt of UCMJ actions while in theater support that conclusion.  However, while the exact dates of his deployment are not known it would be reasonable to conclude the dates provided by the applicant (2 June 2006 to 2 April 2007) are accurate.  As such, it would be appropriate, and in the interest of justice to correct block 12f (foreign service) to reflect 10 months and 1 day and to enter in item 18 (remarks) the statement “SERVICE IN AFGHANISTAN FROM 20060602 – 20070402.”

2.  As a result of the applicant’s service in Afghanistan in support of Operation Enduring Freedom he is also entitled to award of the Afghanistan Campaign Medal with two bronze service stars denoting participation in two designated campaign periods.

3.  Although the applicant’s contention that the entry in block 28 (narrative reason for separation) is unjust, the evidence shows only that the entry should have been “pattern of misconduct” rather than “misconduct, (serious offense).”  While the applicant may have committed a “serious offense” (AWOL) for which separation under the provisions of Army Regulation 635-200, paragraph 14-12c was appropriate, the applicant’s administrative separation action shows that he was recommended and approved for separation under the provisions of paragraph 14-12b (pattern of misconduct).  As such, it would be appropriate to correct block 25 (separation authority) to reflect “AR 635-200, PARA 14-12b,” to correct block 26 (separation code) to reflect “JKA” and to correct block 28 (narrative reason for separation) to reflect “PATTERN OF MISCONDUCT.”

4.  The applicant enlisted for a period of 3 years and 19 weeks but only completed 2 years, 4 months, and 8 days of that enlistment.  As such, the entry in block 18 (remarks), that he did not complete his first full term of service, is correct.

5.  While the applicant argues that there were extenuating circumstances for his periods of AWOL, he provides no evidence that the dates of lost time recorded in item 29 (dates of time lost during this period) were in error, inaccurate, or unjust.  In the absence of such evidence, there is no basis to change or delete any of the entries.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ___X_____  __X______  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:

a. correcting block 12f on his 2008 DD Form 214 to show 10 months and 
1 day of foreign service;
   
   b.  adding the statement “SERVICE IN AFGHANISTAN FROM 20060602 – 20070402” to block 18;

   c.  correcting block 25 (separation authority) to reflect “AR 635-200, PARA 14-12b”, block 26 (separation code) to reflect “JKA” and block 28 (narrative reason for separation) to reflect “PATTERN OF MISCONDUCT”;and
   
   d.  by showing he is entitled to the Afghanistan Campaign Medal with two bronze service stars.
   
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 changing the entry in block 18 which shows he did not complete his first full term of service and deleting or amending the entries in block 29 associated with his lost time.




      _______ _  XXX _______   ___
               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.

ABCMR Record of Proceedings (cont)                                         AR20080018732



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ABCMR Record of Proceedings (cont)                                         AR20080018732



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