IN THE CASE OF:	  

		BOARD DATE:	       24 SEPTEMBER 2009

		DOCKET NUMBER:  AR20090005894 


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 correction of his DD Form 214 to show he was discharged on 20 September 2003, that he was awarded the Expert Field Medical Badge (EFMB) and two awards of the Purple Heart, and the addition of all awards associated with his participation in Afghanistan.

2.  The applicant states that his DD Form 214 shows he was discharged on
20 September 2002; however, he claims he was discharged on 20 September 2003 and actually exceeded his first full term of service.  He goes on to state that he should have been awarded two Purple Hearts for being wounded twice in Afghanistan and all awards associated with that service, to include his award of the EFMB.

3.  The applicant provides a copy of his DD Form 214 in support of his application.

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 (RA) in San Diego, CA on 2 November 2000 for a period of 4 years, training as a medical specialist, and assignment to Fort Hood, TX.

3.  He completed his basic combat training at Fort Sill, OK and his advanced individual training at Fort Sam Houston, TX before being transferred to Fort Hood on 8 April 2001.  He was advanced to the rank/grade of private (PV2)/E-2 on
2 May 2001 and to private first class (PFC)/E-3 on 2 November 2001.

4.  On 24 April 2002, nonjudicial punishment (NJP) was imposed against the applicant for wrongfully using marijuana.  His punishment consisted of a reduction to the rank/grade of PV1/E-1, a forfeiture of pay, and extra duty and restriction.  It also appears that the applicant was enrolled in the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP).

5.  On 15 August 2002, the applicant's commander notified him that he was initiating action to separate him from the service under the provisions of paragraph 4-12c(2), Army Regulation 635-200 (Personnel Separation – Enlisted Personnel) for commission of a serious offense based on his wrongful use of marijuana.

6.  After consulting with counsel, the applicant waived all of his rights and declined the opportunity to submit a statement in his own behalf.

7.  The appropriate authority approved the recommendation for discharge on
6 September 2002 and directed that he receive a general, under honorable conditions discharge.

8.  Accordingly, he was discharged on 20 September 2002 under the provisions of paragraph 4-12c(2), Army Regulation 635-200, by reason of misconduct.  He had served 1 year, 10 months, and 19 days of total active service.

9.  A review of the available records fail to show any evidence that the applicant ever deployed from Fort Hood, that he ever served in Afghanistan, that he was ever wounded, or that he was ever awarded the EFMB.



10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

11.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound sustained while in action against an enemy or 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 by medical personnel, and the medical treatment must have been made a matter of official record.

12.  Army Regulation 600-8-22, in pertinent part, sets forth requirements for the Expert Field Medical Badge.  Award of the Expert Field Medical Badge requires that an individual must have satisfactorily completed the prescribed proficiency tests.  The basic eligibility criteria includes:  (1) officers must be assigned or detailed to an Army Medical Department (AMEDD) corps; (2) warrant officers must have an AMEDD primary military occupational specialty (MOS) controlled by the Surgeon General; and (3) enlisted personnel must have an AMEDD primary MOS (this includes all MOS in CMF 91 as well as MOS 76J and 94F).  Eligible personnel must be on active duty or assigned to a troop program unit in the Reserve component unit or an AMEDD mobilization augmentation agency.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  Accordingly, his discharge appropriately characterizes his record of service during the period in question and lacking evidence to show that he served until 2003 instead of 2002 as he contends, there appears to be no basis to grant his request to change the date of his discharge.

3.  The applicant's contention that he served in Afghanistan and that he was wounded twice while in Afghanistan has also been noted and found to lack merit.  The applicant has not provided and the available records do not contain any 
evidence to support his contentions.  Additionally, there is no evidence in the available records to show that he successfully completed the prescribed proficiency test or was he awarded the EFMB by the appropriate authority.

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X_____  _____X___  ___X_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      __________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)                                         AR20090005894



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ABCMR Record of Proceedings (cont)                                         AR20090005894



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