IN THE CASE OF:	  

		BOARD DATE:	  18 January 2012

		DOCKET NUMBER:  AR20110006471 


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 clemency in that his Dismissal be changed to Retirement and his Dishonorable characterization of service be upgraded to Honorable.  

2.  He also requests correction of the following items on his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 
7 June 2007:

	a.  Item 4b (Pay Grade) to reflect “O-3E”;  

	b.  Item 11 (Primary Specialty) to show he held the following primary specialties:

		(1)  “65DPHW8 Physician Assistant (Parachutist, Instructor, Military Freefall)//3 Years 0 Months//”;

         (2)  “65DPM3HW8 Aeromedical Physician Assistant (Parachutist, Flight Surgeon, Instructor, Military Freefall)//12 Years 0 Months//”;
   
   c.  Item 12e (Total Prior Inactive Service) to show “0000 10 14”;  

	d.  Item 12f (Foreign Service) to show “0000 09 17”; 

	e.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) to add the Armed Forces Expeditionary Medal (AFEM) (2nd Award), Special Forces Combat Patch, and Combat Medical Badge (CMB); 

	f.  Item 14 (Military Education) to show training he completed for the Combat Casualty Care Course and Advance Trauma Life Support Course (1993), U.S. Army Emergency Medicine Physician Assistant Basic Studies Course (1994), and Physician Assistant Readiness and Recertification Course (2000); 

	g.  Item 23 (Type of Separation) to show “Retired” instead of “Dismissal or Discharge as Appropriate”; and

	h.  Item 24 (Character of Service) to reflect an entry appropriate to item 23.  

3.  He states that between 25 May 2007 and 1 June 2008 he filed several Inmate Request Slips to request an opportunity to review his military records prior to his discharge.  When his requests were not favorably considered, he filed a complaint with the Inspector General (IG) office.  The IG office acknowledged the errors; however, he was told to seek relief through the Personnel Command (now the Army Human Resources Command (AHRC)).  He received a response from the Inquiry Office of AHRC instructing him to seek an upgrade of his discharge from the Army Board for Correction of Military Records (ABCMR) before any action could be taken to correct his records. 

4.  He adds that his Leave and Earnings Statement (LES) shows his pay grade as O-3E, indicating he had 4 years or more prior enlisted service.  His Enlistment/Reenlistment Document, dated 21 December 1992 shows the correct amount of prior inactive service for the change requested in item 12e.  

5.  He states he completed two tours of duty in Haiti from 1 September 1994 to 
1 February 1995 and from 1 May to 1 August 1995.  He also spent time in El Salvador from 1 September to 2 October 1987.  He earned the AFEM (2nd Award), Special Forces Combat Patch, and CMB during these periods.  

6.  He contends the type of separation currently shown in item 23 of his DD Form 214 is not listed in accordance with Army Regulation 600-8-24, and only a warrant officer who is not commissioned can receive a Dishonorable Discharge.  The correct entry for item 24 should be determined by the ABCMR during review of his case.

7.  He adds that he petitioned the Disabled American Veterans (DAV) in August 2010 for correction of his DD Form 214 and in September 2010 he was declined assistance.  He believes if his personnel records would have been transferred to the Personnel Control Facility (PCF) in Fort Sill, OK, as directed in his General Court-Martial Order, the errors in question would not have occurred.  

8.  The applicant provides:

* A 43-page self-authored statement
* Two requests for voluntary retirement dated 2000 and 2007
* General Officer Memorandum of Reprimand (GOMOR)
* Various counseling statements
* An investigative report
* A petition for a pre-trial offer
* A LES
* His General Court-Martial documents
* His DD Form 214
* An appeal for clemency
* Several Inmate Request Slips
* An extract of his military personnel record
* Various certificates of training
* Award certificates
* A Department of Veterans Affairs (VA) compensation letter

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 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.  His records show he enlisted in the Regular Army on 22 February 1977.  After completion of training, he served in military occupational specialty 91B (Medical Specialist).  He was honorably REFRAD on 14 March 1979 after completing 
2 years and 22 days of net active service and 2 months and 22 days of prior inactive service. 

3.  He enlisted in the Regular Army again on 6 November 1979.  A reenlistment document, dated 21 December 1992 shows he had 10 months and 14 days of total inactive military service at the time of his reenlistment.  His DD Form 214 for the period ending 15 April 1993 shows he completed 13 years, 5 months, and 
10 days of net active service and had 2 years and 23 days of prior active service.  His grade at the time of discharge was sergeant first class (SFC)/E-7.  This form also shows he had 3 years of foreign service.   Item 13 does not reflect the AFEM or CMB.  There is no indication in the applicant's records to show he was considered or recommended for, or awarded, the CMB.

4.  He provided a memorandum from the Academy of Health Sciences, dated 
26 June 1993.  This document shows he completed the Combat Casualty Care Course (C4) in 1993.  His DD Form 214 for the period ending 7 June 2007 shows his completion of this course and will not be further discussed in this Board of Proceeding.

5.  The applicant’s record shows he was commissioned a second lieutenant on 16 April 1993 in primary specialty 65D (Physician Assistant).  

6.  He provided a copy of orders which award him the Army Commendation Medal (ARCOM) for achievement during Operation Uphold Democracy for the period 1 September to 1 December 1994.  He also provided a certificate of appreciation he received for his participation in Uphold Democracy, Combined Joint Task Force 190.

7.  The applicant provided an LES which reflects his pay grade as O-3E with 
24 years of service. 

8.  He also provided a copy of a diploma for completion of the U.S. Army Emergency Medicine Physician Assistant Basic Studies Course.  This document lists the course as a non-resident/extension course.  

9.  The applicant completed the 40-hour Physician Assistant Readiness and Recertification Course at Fort Sam Houston, TX, on 18 February 2000.

10.  A memorandum dated 10 August 2000 shows an investigation was initiated in regard to a charge of Driving under the Influence (DUI) and his misuse of a government credit card.  The investigating official concluded that misconduct did occur and recommended action be taken under the Uniform Code of Military Justice (UCMJ). 

11.  On 10 August 2000, the applicant submitted a request for voluntary retirement in the grade of captain (CPT)/O-3 and requested a retirement date of 
1 November 2001.  On 3 November 2000, AHRC disapproved his request and noted that he would only have 7 years of commissioned service on the requested retirement date and he needed at least 10 years of commissioned service in order to retire with at least 20 years of active federal service (AFS).  

12.  The applicant received a GOMOR on 24 August 2000 for the misconduct noted in the investigative report dated 10 August 2000. 

13.  A memorandum dated 16 November 2000 shows his commander elected to lift the flagging action on him and directed him to retire by 1 December (no year) or to a date predetermined by his original request.  The commander noted that the applicant was informed that he should continue to prepare for retirement.  

14.  The same document shows the applicant did not make adequate progress towards out-processing; he refused to submit retirement paperwork in the grade of sergeant first class (SFC)/E-7, and failed to show any intention to honor the 
1 December (no year) retirement date.  His commander also requested that disciplinary action be taken against the applicant for his August 2000 DUI and government credit card offenses. 

15.  The applicant was formally counseled and received nonjudicial punishment (NJP) for disobeying a lawful command from his superior officer. 

16.  All the facts and circumstances leading up to his general court-martial are not available for review; however, on 20 March 2001 there was a transfer of court-martial jurisdiction from MacDill Air Force Base to Fort Stewart, GA. 

17.  A pre-trial offer and agreement dated 12 July 2001 shows the applicant offered to plead guilty as set out in the pre-trial offer provided the convening authority agree to suspend any confinement in excess of twelve years for a period of eight years, and the convening authority agree to recommend to Department of the Army that any confinement be served at the U.S. Naval confinement facility at Charleston Naval Base.   The pretrial agreement did not require the convening authority to set aside any other authorized punishments.  

18.  A Report of Result of Trial, dated 8 August 2001 shows the applicant was tried by a general court-martial on 8 August 2001 at Fort Stewart, GA.  The Result of Trial erroneously describes the court-martial as a special court-martial.  Pursuant to his pleas, he was found guilty of the following offenses:

* Involuntary manslaughter
* Conduct unbecoming of an officer and gentleman
* Three specifications of drunk driving 
* Reckless endangerment

19.  He was sentenced to a reprimand, confinement for 13 years and 6 months, forfeiture of all pay and allowances, and dismissal from the U.S. Army.  The sentence was adjudged on 8 August 2001.  On 7 June 2002, the sentence was approved and except for that part of the sentence extending to a dismissal was ordered executed.  The execution of that part of the sentence adjudging confinement in excess of 12 years was suspended for 8 years.  The forfeiture of all pay and allowances was waived for a period of 6 months with direction that the monies be paid by allotment directly to his qualifying dependents for support.  He was also reprimanded for unlawfully killing A.M.B. by hitting her with his vehicle while intoxicated; for wrongfully and dishonorably committing vehicular homicide while drunk; for conduct unbecoming an officer and a gentlemen; for physically controlling a vehicle while drunk on 5 August 2000 and 11 February 2001; causing harm to himself; and for wrongfully and recklessly failing to maintain control of his car which was likely to cause death or serious bodily harm to a law enforcement official.  The approval authority also noted that his violations of the UCMJ brought discredit upon him and the U.S. Army and that he failed to maintain a standard of conduct expected of an officer in the command.  The Army's image and reputation had been tarnished because of his conduct. 

20.  On 23 May 2002, the applicant’s appointed counseled petitioned the Commander, Fort Stewart, GA, for clemency by disapproving the findings of guilty of the charge of driving drunk on 11 February 2001 and the charge of causing injury to himself on 18 April 2001.  Alternatively, he requested that the punitive discharge be disapproved and to limit the confinement to a period of 10 years.  

21.  On 17 June 2002, General Court-Martial (GCM) Order Number 13 was issued and shows that pursuant to his pleas he was convicted of the following offenses:

      a.  Charge I – Unlawfully killing another person while driving intoxicated on 
18 April 2001;

      b.  Charge III – Two specifications:  

            (1)  Failed to inform his chain of command of the DUI on 11 February 2001 and his involvement in the fatal traffic accident on 18 April 2001; and 

           (2)  Conduct unbecoming of an officer and gentlemen and violation of his driving restrictions and Florida state code.  

      c.  Charge IV – Three specifications:

           (1)  DUI on 5 August 2000
           (2)  DUI on 11 February 2001
           (3)  DUI and injury to himself on 18 April 2001

      d.  Charge V – wrongfully and recklessly fail to maintain control of his car in a manner likely to cause death or seriously bodily harm. 

22.  The sentence was approved and ordered executed except for the portion pertaining to a dismissal.  The forfeiture of all pay and allowances was deferred for a period of 6 months and was directed to be paid to his dependents.  

23.  On 31 January 2006, the U.S. Army Court of Criminal Appeals set aside the finding of guilty and dismissed Charge IV - Specification 3.  The remaining findings of guilty were affirmed.  The court affirmed only so much of the sentence that provided for a dismissal, twelve years confinement, and a reprimand.

24.  On 27 May 2007, the Assistant Secretary of the Army (Manpower and Reserve Affairs) approved the applicant’s sentence as affirmed by the U.S. Army Court of Criminal Appeals and ordered the sentence executed.

25.  The applicant submitted another request for Voluntary Retirement on 30 May 2007 and his request was returned without action.  The memorandum noted that he was not eligible to request a retirement and his dismissal would be executed. 

26.  The Chief of Staff of the Army ordered the applicant dismissed from the U.S. Army at midnight on 7 June 2007.

27.  Accordingly, on 7 June 2007 he was dismissed.  The DD Form 214 he was issued shows he refused to sign the form and also depicts the following entries:

* Item 4b – “O-3”
* Item 11 – “65D M3 Physician Assistant – 8 Years 0 Months//Nothing Follows”
* Item 12e – “0000 03 04”
* Item 12f – “0000 00 00”
* Item 13 – shows the AFEM, but does not reflect the CMB
* Item 14 – “Army Flight Surgeon Course, 1996//Combat Casualty Care Course, 1993//Military Physician Assistant Course, 1993//Nothing Follows”
* Item 23 – “Dismissal or Discharge as Appropriate”
* Item 24 – “Dishonorable”
* Item 25 (Separation Authority) – “Army Regulation 600-8-24, paragraph 
           5-17”

28.  In his self-authored statement he lists the financial stressors, his marriage problems, and his mental fatigue which caused him to turn to alcohol.  He also states he is very remorseful for all that occurred prior to his court-martial and has repeatedly apologized to the victim’s family for his mistake.  Despite his full and honorable military service prior to the event, his many attempts to retire from the U.S. Army were unsuccessful.

29.  Army Regulation 600-8-22 (Military Awards) states the AFEM is awarded for qualifying service after 1 July 1958 in U.S. military operations, U.S. operations in direct support of the United Nations, and U.S. operations of assistance for friendly foreign nations.  Qualifying service for this award includes service in El Salvador from 1 January 1981 through 1 February 1992 and in Operation Uphold Democracy in Haiti during the period 16 September 1994 through 31 March 1995.    

30.  Army Regulation 600-8-22 states the CMB is awarded to medical department personnel (colonel and below) who are assigned or attached to a medical unit of company or smaller size that is organic to an infantry unit of brigade, regimental or smaller size which is engaged in active ground combat.  Battle participation credit is not sufficient; the infantry unit must have been in contact with the enemy and the Soldier must have been personally present and under fire during such ground combat.

31.  Army Regulation 670-1 (Wear and Appearance of Army Uniforms and Insignia) prescribes the authorization for wear, composition, and classification of uniforms, and the occasions for wearing all personal (clothing bag issue), optional, and commonly worn organizational Army uniforms.  Paragraph 28-17 contains guidance on the wear of the Shoulder Sleeve Insignia-Former Wartime Service (SSI-FWTS), which is commonly referred to as the combat patch.  It states, in pertinent part, that it is authorized for wear to members of units that actively participated in, or supported ground combat operations against hostile forces in which they were exposed to the threat of enemy action or fire, either directly or indirectly.  The regulation indicates that it is authorized for wear for El Salvador from 1 January 1981 to 1 February 1992, both dates inclusive, for those personnel who participated in El Salvador operations.

32.  Army Regulation 600-8-24 (Officer Transfers and Discharge) prescribes policies and procedures governing the transfer and discharge of Army officer personnel.  Paragraph 1–18 states that an officer who has been convicted and sentenced to dismissal or dishonorable discharge will not be discharged prior to completion of appellate review without prior approval from the Commander, AHRC.   

33.  Paragraph 5-17 covers dismissal of an officer due to general court-martial proceedings.  It states an officer convicted and sentenced to dismissal as a result of a general court-martial will be processed pending appellate review.  The glossary of this regulation defines dismissal as the release of an officer/warrant officer from the service without honor upon a sentence including dismissal by a court-martial.   

34.  Army Regulation 600-8-24 states the character of service will be predicated on the officer’s behavior and performance while a member of the Army.  Characterization normally will be based on a pattern of behavior and duty performance rather than an isolated incident.  However, there are circumstances in which conduct reflected by a single incident may provide the basis of characterization of service.

35.  Paragraph 1-22 of Army Regulation 600-8-24 defines the types of an officer’s characterization of service:

       a.  Honorable characterization of service.  An officer will normally receive an Honorable characterization of service when the quality of the officer’s service has met the standards of acceptable conduct and performance of duty, or the final revocation of a security clearance for reasons that do not involve acts of misconduct.

       b.  General Under Honorable Conditions characterization of service.  An officer will normally receive an Under Honorable Conditions characterization of service when the officer’s military record is satisfactory but not sufficiently meritorious to warrant an Honorable discharge.  A separation under honorable conditions will normally be appropriate when an officer submits an unqualified resignation or a request for release from active duty under circumstances involving misconduct; is separated based on misconduct, including misconduct for which punishment was imposed, which renders the officer unsuitable for further service, unless an Under Other Than Honorable Conditions separation is appropriate; is discharged for physical disability resulting from intentional misconduct or willful neglect, or which was incurred during a period of unauthorized absence; or is discharged for the final revocation of a security clearance.

       c.  Under Other Than Honorable Conditions characterization of service.  A discharge Under Other Than Honorable Conditions is an administrative separation from the service under conditions other than honorable.  A discharge certificate will not be issued.  An officer will normally receive an “Under Other Than Honorable Conditions” characterization of service when they resign for the good of the service; are dropped from the rolls of the Army; or are involuntarily separated due to misconduct, moral or professional dereliction, or for the final revocation of a security clearance.

       d.  Dishonorable characterization of service.  A court-martial may sentence a warrant officer who is not commissioned to a Dishonorable Discharge.  A discharge certificate will not be issued.

       e.  No formal discharge certificate.  No formal discharge certificate will be issued when the officer is:  dropped from the rolls of the Army; dismissed as a result of sentence of court-martial; removed under the criminal code of the United States; discharged Under Other Than Honorable Conditions; separated with a dishonorable discharge (applies only to a warrant officer who does not hold a commission).

36.  Chapter 6 of Army Regulation 600-8-24 applies to nondisability retirement of commissioned and warrant officers on AD who have 20 years or more of Active Federal Service (AFS).  It states when an action is initiated against a commissioned officer with a view to trying such officer by court-martial, the Secretary of the Army may delay that officer’s retirement (without prejudice) until the action is complete.   

37.  Paragraph 6-13 of the same regulation states the Secretary of the Army is the approval authority for retirements.  The Secretary of the Army has delegated approval authority for voluntary retirements (waiver/nonwaiver) to the Commander, AHRC to approve, disapprove, or delay/defer the requested retirement date of an officer who has completed 20 but less than 30 years of AFS.  Endorsing commanders are reminded that an officer requesting a voluntary nonwaiver retirement who has completed 20 but less than 30 years of AFS is eligible, but not entitled to retire upon request.  Voluntary retirements may be denied or delayed based on the needs of the Army, and each application will be evaluated on its individual merits.

38.  Title 10, U.S. Code, Chapter 367 (Retirement for Length of Service), Section 3911 (Twenty years or more:  regular or reserve commissioned officers), provides that the Secretary of the Army may, upon the officer's request, retire a regular or reserve commissioned officer of the Army who has at least 20 years of service computed under section 3926 of this title, at least 10 years of which have been active service as a commissioned officer.  This section also provides that the Secretary of Defense may authorize the Secretary of the Army, during the period beginning on October 1, 1990, and ending on December 31, 2001, to reduce the requirement for at least 10 years of active service as a commissioned officer to a period (determined by the Secretary of the Army) of not less than eight years.
39.  Title 10, U.S. Code, Section 1161, (Commissioned officers: limitations on dismissal) states that no commissioned officer may be dismissed from any armed force except by sentence of a general court-martial; in commutation of a sentence of a general court-martial; or in time of war, by order of the President.  

40.  Army Regulation 635-5 (Separation Documents) governs the preparation of the DD Form 214.  It states that the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge.  Paragraph 2-4 provides instructions for the completion of the following items on the DD Form 214.  

	a.  Item 4b – Enter active duty grade or rank and pay grade at time of separation. 

	b.  Item 11 - Enter the titles of all Military Occupational Specialties (MOS) or Areas of Concentration (AOC) served for at least 1 year and include for each MOS/AOC the number of years and months served.  For time determination, 
16 days or more count as a month.  

   c.  Item 12e - From previously issued DD Forms 214, enter the total amount of prior inactive service, less lost time, if any.  

	d.  Item 12f – Enter the total amount of foreign service during the period of service covered by the DD Form 214.

	e.  Item 13 – List awards and decorations for all periods of service.  Each entry will be verified by the Soldier's records. 

	f.  Item 14 – List in-service (full-time attendance) training courses successfully completed during the period of service covered by the DD Form 214.  

   g.  Item 24 – The characterization or description of service is determined by directives authorizing separation.  The entry must be Honorable; Under Honorable Conditions; Under Other Than Honorable Conditions; Bad Conduct; Dishonorable; or Uncharacterized. 
   
41.  Army Regulation 635-5, the version currently under revision, lists “Dismissal or Discharge as appropriate” as an appropriate entry for item 23 of the DD Form 214.  It also states to enter either release from active duty; discharge; retirement; release from active duty and order to active duty in another status; release from Active Duty for Training (ADT); release from custody and control of the Army; or release from ADT and discharge from the Reserve of the Army and return to the Army National Guard.

42.  Manual for Courts-Martial, page II-129, section IV, "states only a general court-martial, upon conviction of any offense in violation of the code may sentence a commissioned or warrant officer or a cadet or midshipman to be separated from the service with a punitive separation.  In the case of commissioned officers, cadets, midshipman, and commissioned warrant officers, the separation shall be by dismissal.  In the case of all other warrant officers, the separation shall be by dishonorable discharge."

43.  Department of Defense (DOD) Financial Management Regulation, dated January 2010, volume 7A, chapter 1, states, in pertinent part, "Effective 20 May 1958, commissioned officers in pay grades O-1, O-2, or O-3 who are credited with over 4 years of prior service as an enlisted member are entitled to the special rate of basic pay for pay grade O-1E, O-2E, or O-3E."

44.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction.  Rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate.  Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was not allowed to retire.  The evidence of record shows he requested voluntary retirement in the grade of CPT/O-3 in November 2000 after receiving a GOMOR for a DUI.  His request was denied because he did not meet the required time in service as a commissioned officer.  His commanding officer instructed him to resubmit his request for retirement in the grade of SFC/E-7 and to prepare for retirement in December (no year) to a date to be determined.  

2.  The evidence also shows that he did not resubmit his request as instructed by his chain of command and made no effort to out-process from the Army.  It appears that his refusal to follow orders in a timely manner as directed by chain of command, coupled with two subsequent DUI offenses, which occurred in early 2001, resulted in the loss of his privilege to retire from the Army.  As such, there is no error or injustice on the part of the Army in not allowing him to retire.

3.  The applicant requested to amend item 4b of his DD Form 214 to show his pay grade as O-3E.  By regulation, O-3E is a pay rate and not a pay grade, his DD Form 214 correctly shows his pay grade as O-3.  Therefore, the applicant is not entitled to correction of his DD Form 214.

4.  He requested amendment of item 11 of his DD Form 214 to reflect AOC 65DPHW8 Physician Assistant and 65DPM3HW8 Aeromedical Physician Assistant.  The applicant has not provided sufficient evidence to show the dates he was awarded the AOCs.  There is the presumption of government regularity.  As such, the entry on his DD Form 214 for the period ending 7 June 2007 properly reflects the AOC he held at the time of his dismissal. 

5.  Although he provided a reenlistment document which shows his prior inactive service as 10 months and 14 days; his DD Forms 214 for the periods ending 
14 March 1979 and 15 April 1993, combined only reflect a total of 5 months and 26 days.  As such, it would be appropriate to change item 12e to show he had 
5 months and 26 days of prior inactive service 

6.  His request to amend item 12f to show his foreign service in Haiti and El Salvador was also considered.  He provided a copy of an ARCOM which shows he participated in Operation Uphold Democracy in Haiti during the period 
1 September to 1 December 1994.  As a result, he is entitled to have 3 months and 1 day added to item 12f of his DD Form 214. 

7.  He also requested award of the AFEM (2nd Award) for his foreign service during Operation Uphold Democracy.  His DD Form 214 for the period ending 
7 June 2007 shows he was awarded the AFEM.  He has not provided sufficient evidence to show his participation in two separate operations for which this award is authorized.  As a result, this portion of his request should not be granted.  

8.  He has not provided sufficient evidence or a convincing argument that he was recommended for or awarded the CMB.  As a result, he is not entitled to add this badge to his DD Form 214.

9.  Although it is authorized for wear with the uniform for those members who participated in El Salvador operations from 1 January 1981 to 1 February 1992, the SSI-FWTS, or combat patch as it is commonly referred to, is an item of wear with the uniform and is not an authorized individual award.  Therefore, it will not be included in the list of awards entered in Item 13 of the DD Form 214.  

10.  His request to amend item 14 to properly reflect all his military training is partially supported by the evidence provided.  He completed the Physician Assistant Readiness and Recertification Course on 18 February 2000, which was a 40-hour resident course.  As a result, he is entitled to have this course added to his DD Form 214.  

11.  He also submitted a certificate of completion for the U.S. Army Emergency Medicine Physician Assistant Basic Studies Course, which is an extension course and as a result, this course does not qualify for entry on the DD Form 214.  

12.  Because of the collateral consequences of his dismissal and the calls for clemency, given the applicant’s entire military record and the nature of the offenses, it is clear that his service did not meet the criteria for a general or an honorable discharge.  As a result, there is no evidentiary basis to support the applicant’s request to upgrade his discharge at this time or to show he retired for years of service.  Therefore, his request to amend item 23 of his DD Form 214 should not be granted.  

13.  In the alternative, he also requested that item 24 be changed to a characterization of service that is applicable to his dismissal by general court-martial.  Army Regulation 600-8-24 and the Manual for Court-Martial state that only a warrant officer who does not hold a commission can be given a dishonorable characterization of service by a court-martial.  A dismissal for a commissioned officer is a punitive discharge, and appellate courts have held that it is the equivalent of a dishonorable discharge given to enlisted Soldiers and warrant officers who are not commissioned.  An Under Other Than Honorable Conditions characterization is given for administrative separations, and therefore, would be inappropriate in this case.  Therefore, the characterization of “Dishonorable” on applicant’s DD form 214 remains the most appropriate characterization of his service.  

14.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  The applicant’s conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which the applicant was convicted.


BOARD VOTE:

____x___  ____x___  ____x___  GRANT FULL RELIEF 

________  ________  ________  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 for the period ending 7 June 2007 to show the following entries:

* Item 12e – 0000 Years, 05 Months, 26 Days
* Item 12f – 0000 Years, 03 Months, 01 Days
* Item 14 – Physician Assistant Readiness and Recertification Course, 2000

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 retirement, adding AOCs, awards, badges, military training for correspondence courses, upgrading his discharge to honorable, and other service-related modifications to his DD Form 214. 




      _______ _   __x_____   ___
               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.



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ABCMR Record of Proceedings (cont)                                         AR20110006471



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