BOARD DATE:	  17 November 2011

		DOCKET NUMBER:  AR20110010665 


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 an upgrade of his discharge under other than honorable conditions and a change to the narrative reason for his separation (in effect, that it be changed to a medical separation).  He also requests correction of his discharge document to show he served in Iraq.

2.  The applicant states he served in the medical platoon of Headquarters and Headquarters Troop (HHT), 1st Squadron, 4th Cavalry, at Camp Mackenzie in Iraq in 2004.  He sustained injuries from prolonged walking on the terrain and was medically evacuated.  He was discharged for malingering; however, 3 years later the Department of Veterans Affairs (VA) determined his injuries were legitimate.  He adds that his overseas service in Iraq is not recorded on his discharge document.

3.  The applicant provides copies of an Army Discharge Review Board (ADRB) decision, his DD Form 214 (Certificate of Release or Discharge from Active Duty), Enlisted Record Brief (ERB), seven leave and earnings statements (LES's), nine medical documents, and a VA rating decision.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 4 March 2003 for a period of 4 years.  He was awarded military occupational specialty 91W (Health Care Specialist).

2.  The applicant's ERB, dated 8 February 2005, shows in:

	a.  section I (Assignment Information – Overseas Duty) – Germany,

	b.  section III (Service Data) – advancement to private first class (E-3) effective 7 March 2003, and

	c.  section IV (Personal/Family Data – PULHES) – "111121."

3.  U.S. Army Europe Schweinfurt Transition Center, Germany, Orders 039-001, dated 8 February 2005, reassigned the applicant from HHT, 1st Squadron, 4th Cavalry, to the Schweinfurt Transition Center for discharge on 11 February 2005.

4.  The applicant's military personnel records do not contain a DD Form 458 (Charge Sheet) or his request for discharge for the good of the service based on conduct triable by court-martial under the provisions of Army Regulation 635-200, chapter 10.

5.  The applicant's DD Form 214 shows he entered active duty on 4 March 2003 and he was discharged in lieu of trial by court-martial on 11 February 2005 in accordance with Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, with his service characterized as under other than honorable conditions.  He completed 1 year, 11 months, and 8 days of net active service.  It also shows in:

	a.  item 4a (Grade, Rate, or Rank) – PV1 [private];

	b.  item 4b (Pay Grade) – E-1;

	c.  item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) – National Defense Service Medal, Global War on Terrorism Expeditionary Medal, Global War on Terrorism Service Medal, and Army Service Ribbon;

	d.  item 18 (Remarks) – no service in a hostile fire pay (HFP)/imminent danger pay (IDP) area or service in Iraq; and

6.  On 29 May 2009, the ADRB considered the applicant's case and determined his discharge was proper and equitable.  Accordingly, his request was denied and he was notified of the ADRB's decision.

7.  On 24 June 2010, the ADRB reconsidered the applicant's case when he appeared before the board.  The ADRB determined the applicant's discharge was proper and equitable, his request was denied, and he was notified of the ADRB's decision.

8.  In addition to his ERB, DD Form 214, and the ADRB's decision, the applicant provides the following documents:

	a.  seven LES's covering the period 1 July 2004 through 31 January 2005.  The July 2004 LES shows he was authorized $225.00 HFP/IDP.  The other six LES's do not show he was authorized HFP/IDP;

	b.  nine medical documents, as follows:

		(1)  page 1 of 4 pages of a DD Form 2808 (Report of Medical Examination), dated 14 January 2003, completed for the purpose of the applicant's enlistment in the Army.  It shows the applicant was diagnosed with mild pes planus [absence of foot arch when standing] that was asymptomatic [showing no evidence of disease];

		(2)  a Standard Form 600 (Chronological Record of Medical Care), dated 9 July 2003, and a U.S. Army Medical Command (MEDCOM) Form 695-R (Medical Record – Low Back Pain), undated, that show the applicant complained of sharp pains in his lower back occurring during the past 3 weeks;

		(3)  a Standard Form 600 and a MEDCOM Form 695-R, both dated 22 August 2003, that show the applicant complained of sharp, constant lower back pain occurring during the past 2 weeks when he was standing or moving which began after doing litter carries.  The medical official directed modified duty with no running, jumping, sit-ups, flutter kicks, or lifting for 1 week;

		(4)  a DA Form 5181-R (Screening Note of Acute Medical Care), dated 6 January 2004, that shows the applicant complained of foot pain occurring for 2 weeks or longer and lower back pain (on and off) for the past year.  The medical official noted the applicant had calluses that were very painful and recommended callus shaving/filing;

		(5)  a Standard Form 513 (Medical Record – Consultation Sheet), dated 8 May 2004, that shows the applicant complained of plantar right foot pain occurring during the past 6 months;

		(6)  a DA Form 2807-1 (Report of Medical History), dated 1 October 2004, completed by the applicant for the purpose of his separation physical.  He indicated he had been diagnosed with plantar fasciitis in December 2004, he deployed with the condition, and the condition got worse; and

		(7)  a DD Form 2808 (Report of Medical Examination), undated, that shows entries only in the dental and vision sections.  It does not show any other medical entries; and

	c.  VA Rating Decision that shows service connection was granted for the applicant's bilateral plantar fasciitis (10 percent) and chronic lumbar sprain (10 percent) on 9 August 2008 with an overall or combined rating of 20 percent.

9.  During the processing of this case, the General Processing Branch, Defense Finance and Accounting Service (DFAS), Cleveland, OH, was asked to verify information relevant to the applicant's receipt of HFP/IDP.  DFAS confirmed the applicant received HFP/IDP for service in Kuwait from 8 February through 6 July 2004.

10.  A review of the history of the 4th Cavalry Regiment, available on the Internet [http://www.25thida.org/4thcav] shows in 2004-2005, the 1st Squadron, organized as Task Force Saber, conducted security and stability operations from Forward Operating Base Mackenzie near the town of Ad Duluyuah, Iraq.

11.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, or release from active duty service or control of the Active Army.

	a.  Chapter 2, paragraph 2-4, contains item-by-item instructions for completing the DD Form 214.

	b.  Item 18 states to use this block for entries required by Headquarters, Department of the Army, for which a separate block is not available and for completing entries too long for their blocks.

		(1)  For an active duty Soldier deployed with his or her unit during their continuous period of active service, enter the statement, "SERVICE IN (name of country deployed) FROM (inclusive dates for example, YYYYMMDD-YYYYMMDD)."

		(2)  For a Soldier who served in an HFP/IDP area, enter the statement, "SERVED IN A DESIGNATED HOSTILE FIRE PAY AREA" or "SERVED IN A DESIGNATED IMMINENT DANGER PAY AREA."

12.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) sets forth policies, responsibilities, and procedures in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.
	a.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.  Separation by reason of disability requires processing through the Physical Disability Evaluation System (PDES).

	b.  A member who is under investigation for or charged with an offense for which he could be dismissed or given a punitive discharge may not be referred for disability processing.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 provides 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.

	b.  Chapter 3, 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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

   c.  Chapter 3, 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.  

14.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.



DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge under other than honorable conditions should be upgraded to honorable, the narrative reason for his separation should be changed to a medical discharge, and his DD Form 214 should be corrected to show he served in Kuwait/Iraq.

2.  The evidence of record shows:

	a.  the applicant was awarded the Global War on Terrorism Expeditionary Medal,

	b.  his July 2004 LES shows he was authorized HFP/IDP,

	c.  DFAS confirmed he served in Kuwait and was authorized HFP/IDP from 8 February to 6 July 2004, and

	d.  his unit operated in Iraq in 2004.

3.  Therefore, based on the available records and evidence of record, it would be appropriate to correct the applicant's DD Form 214 to show he served in the HFP/IDP area of Kuwait/Iraq from 8 February to 6 July 2004.

4.  Medical records show the applicant was diagnosed for lower back pain on 9 July 2003, he received medical treatment, and he was issued a 1-week temporary physical profile on 22 August 2003.  Records also show he was diagnosed for plantar fasciitis on 5 January 2004 and he received medical treatment through 8 May 2004.

	a.  There is no evidence the applicant received any further medical treatment for either of his medical conditions after 8 May 2004 through the date he was discharged from active duty on 11 February 2005.

	b.  There is no evidence the applicant was referred to the PDES.

5.  There is no evidence and the applicant provides insufficient evidence to show he was medically unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  Thus, the evidence does not support the applicant's contention that he had a physically unfitting condition at the time of his discharge.  Therefore, there is no basis to support the applicant's contention that the narrative reason of his discharge should be changed to show he was medically discharged.

6.  The regulations governing the Board's operation require that the discharge process must be presumed to have been in accordance with applicable law and regulations unless the applicant can provide evidence to overcome that presumption.  Therefore, considering all the facts of this case and in the absence of evidence to the contrary, the type of discharge, narrative reason, and characterization directed appear to have been, and still are, appropriate.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x__  __x______  _____x___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is 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 adding the following entries to item 18 of his DD Form 214:

* "SERVED IN A DESIGNATED IMMINENT DANGER PAY AREA"
* "SERVICE IN KUWAIT/IRAQ FROM 20040208-20040706"

2.  The Board further determined 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 type of discharge, narrative reason, and characterization of service.



      __________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.
ABCMR Record of Proceedings (cont)                                         AR20110010665



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ABCMR Record of Proceedings (cont)                                         AR20110010665



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