IN THE CASE OF:	  

		BOARD DATE:	  23 February 2012

		DOCKET NUMBER:  AR20110014684 


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 bad conduct discharge (BCD).  In addition, he requests correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his foreign service in Kosovo and, in effect, award of the Army Commendation Medal.

2.  He states his DD Form 214 does not reflect his service in Kosovo and the Army Commendation Medal for this service.  He states he received excessive punishment for defending his manhood.

3.  He provides:

* A DD Form 457 (Investigating Officer's Report), dated 21 February 2002
* An Honorable Discharge Certificate, dated 3 June 1999
* The reverse of a DA Form 638 (Recommendation for Award), dated
22 September 1999 and accompanying Army Commendation Medal Certificate, dated 27 September 1999
* An Honorable Discharge Certificate, dated 31 October 2001
* A Certificate of Promotion to Sergeant (SGT), dated 4 October 2001
* His DD Form 214
* His résumé

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel defers to applicant.

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.  With prior active and inactive service, the applicant enlisted in the Regular Army on 6 April 1995 in the rank/grade of private (PV1)/E-1.  He completed training and he was awarded military occupational specialty 98H (Morse Code Interceptor).  He reenlisted on 6 April 1995 and 6 April 1999.

3.  He provided a copy of the reverse of a DA Form 638 which shows he was awarded the Army Commendation Medal by Permanent Order Number
265-01, issued by Task Force Med Falcon, Camp Bondsteel, Kosovo, dated
22 September 1999.  The accompanying certificate shows he was assigned to the 67th Combat Support Hospital (CSH) in support of Operation Joint Guardian, Camp Bondsteel, from 15 June 1999 through 27 September 1999.

4.  Item 3 (Section VII - Current and Previous Assignments) of his DA Form 2-1 (Personnel Qualification Record - Part II) shows he was assigned to the 67th CSH in Germany from 4 June 1999 to 9 November 2000.  

5.  Orders 046-05, issued by Headquarters, U.S. Army Training Center, Fort Jackson, SC, dated 15 February 2001, promoted him to sergeant (SGT)/E-5 effective 1 October 1999.

6.  Orders 201-1, issued by the same headquarters, dated 17 July 2001, revoked the orders promoting him to SGT.

7.  The applicant's record contains a DA Form 1059 (Service School Academic Evaluation Report), dated 4 October 2001, that shows he successfully completed the Primary Leadership Development Course (PLDC) at Fort Benning, GA, during the period 5 September 2001 through 4 October 2001.

8.  He provided a copy of a DD Form 467, dated 21 February 2002, that summarized the Article 32 hearing pertaining to charges against him.

9.  On 2 May 2002, he was convicted by a general court-martial of:

* one specification of unlawfully striking a staff sergeant (SSG) on the face with a firearm on or about 30 November 2001
* one specification of assaulting that SSG by pointing an unloaded firearm at him on or about 30 November 2001
* one specification of wrongfully communicating to that SSG a threat to injure him by stating to him, "Ni---r, don’t you know that I'll kill you," or words to that effect on or about 30 November 2001
* one specification of assaulting another SSG by pointing an unloaded firearm at him on or about 30 November 2001

10.  The court sentenced him to confinement for 6 months, reduction to PV1/E-1, forfeiture of all pay and allowances, and a BCD.

11.  On 22 September 2002, the convening authority approved the sentence and, except for the BCD, ordered it executed.  The record of trial was forwarded to The Judge Advocate General of the Army for review by the U.S. Army Court of Military Review.

12.  On 23 October 2002, the applicant was placed on voluntary excess leave pending military review of his court-martial conviction.

13.  On an unspecified date, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.

14.  There is no evidence he petitioned the U.S. Court of Appeals for the Armed Forces for a review of his case.

15.  General Court-Martial Order Number 233, issued by Headquarters, U.S. Army Armor Center, Fort Knox, KY, dated 27 August 2003, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's BCD sentence executed.

16.  On 26 December 2003, he was discharged accordingly under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 3, as a result of court-martial with a BCD.  He completed 8 years,
8 months, and 7 days of creditable active service with 147 days of time lost.  The DD Form 214 he was issued at the time shows in:

* Item 12f (Foreign Service) the entry "0000  00  00" indicating no foreign service this period
* Item 13 (Decorations, Medal, Badges, Citations and Campaign Ribbons Awarded or Authorized) the entry "None//Nothing Follows"
* Item 18 (Remarks) the entry "Separated from Service on Temporary Records and Soldier's Affidavit"
* Item 18 no entry for deployed service

17.  Army Regulation 600-8-22 (Military Awards) provides Department of the Army policy, criteria, and administrative instructions concerning individual military decorations, Army Good Conduct Medal, service medals and ribbons, combat and special skill badges and tabs, unit decorations, and trophies, and similar devices awarded in recognition of accomplishments.  It states:

	a.  The Kosovo Campaign Medal is awarded to members of the Armed Forces of the United States who, after 24 March 1999, participated in or served in direct support of designated operations, including Operation Joint Guardian (11 June 1999 through a date to be determined).  Service members must be bona fide members of a unit participating in or be engaged in direct support of the operation for 30 consecutive days in the AOE or for 60 nonconsecutive days provided this support involves entering the operation's AOE or meet one or more of several other, specified criteria.  One bronze service star will be worn for participation in each campaign (Kosovo Air Campaign and Kosovo Defense Campaign).  Qualification for a second bronze service star requires meeting the criteria for both campaigns.  The 30 consecutive or 60 nonconsecutive days that began during the Air Campaign (began on 24 March 1999 and ended on 10 June 1999) and continued into the Defense Campaign (began on 11 June 1999 to a date to be determined) entitles a member to only one bronze service star.

	b.  The National Defense Service Medal is awarded for honorable active service for any period between 27 July 1950 through 27 July 1954, 1 January 1961 through 14 August 1974, 2 August 1990 to 30 November 1995; and
11 September 2001 to a date to be determined.

	c.  The Army Service Ribbon was established by the Secretary of the Army on 10 April 1981.  Effective 1 August 1981, all members of the Active Army, Army National Guard, and Army Reserve in an active Reserve status are eligible for the award upon successful completion of initial entry training.

	d.  The Noncommissioned Officer Professional Development Ribbon was established by the Secretary of the Army on 10 April 1981.  It is awarded to 

members of Active Army, Army National Guard, and U.S. Army Reserve Soldiers for successful completion of designated noncommissioned officer professional development courses.

	e.  The Global War on Terrorism Service Medal is authorized for award to members of the Armed Forces of the United States who have participated in Global War on Terrorism operations outside of the AOE designated for award of the Global War on Terrorism Expeditionary Medal, Afghanistan Campaign Medal, or Iraq Campaign Medal.  All Soldiers on active duty on or after 11 September 2001 to a date to be determined having served 30 consecutive days or
60 nonconsecutive days are authorized the Global War on Terrorism Service Medal.

18.  Army Regulation 635-5 (Personnel Separations - Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  It states for:

* Item 12f, enter the total amount of foreign service completed during the period covered by the DD Form 214
* Item 13, enter awards and decorations for all periods of service in the priority sequence specified in Army Regulation 600-8-22
* Item 18, for an active duty Soldier deployed to a foreign country 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)"

19.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  It states in:

	a.  Paragraph 3-11, a Soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the sentence affirmed before it can be duly executed.

	b.  Paragraph 3-7a, 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 meet 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.  Paragraph 3-7b, 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.

20.  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 evidence of record shows that during the period covered by the applicant’s DD Form 214, he served in support of Operation Joint Guardian in Kosovo from 15 June 1999 through 27 September 1999, a period of 3 months and 13 days.  Therefore, Item 12f of his DD Form 214 should be corrected to show 3 months and 13 days of foreign service and Item 18 of his DD Form 214 should be corrected to show his deployed service in Kosovo from 15 June 1999 through 27 September 1999.

2.  Permanent orders awarded him the Army Commendation Medal for meritorious service in Kosovo.  He also participated in the Kosovo Defense Campaign during his service in Kosovo.  Therefore, his DD Form 214 should be corrected to show the Army Commendation Medal and the Kosovo Campaign Medal with one bronze service star.

3.  The evidence also shows he served during a qualifying period for entitlement to the National Defense Service Medal, Army Service Ribbon, and the Global War on Terrorism Service Medal.  Therefore, his DD Form 214 should be corrected to show these awards.

4.  The evidence further shows he completed the Primary Leadership Development Course on 4 October 2001.  As a graduate of this course he was entitled to the Noncommissioned Officer Professional Development Ribbon.  Therefore, his DD Form 214 should be corrected to show this award.

5.  The evidence of record also shows on 2 May 2002 he was convicted by a general court-martial of one specification each of unlawfully striking a SSG on the 

face with a firearm, assaulting that SSG by pointing an unloaded firearm at him, wrongfully communicating to that SSG a threat to injure him, and assaulting another SSG by pointing an unloaded firearm at him.  He was discharged on 26 December 2003 with a BCD pursuant to the approved sentence of a general court-martial.

6.  His trial by court-martial was warranted by the gravity of the offenses charged. His conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterized the misconduct for which he was convicted.

7.  He provided no evidence to show his BCD is unjust or as a result of improper actions.  There is no error or injustice apparent in his record.  There is also no evidence his court-martial was unjust or inequitable.  He has not provided sufficient evidence or argument to show his discharge should be upgraded to a general or an honorable discharge.

8.  Any redress by this Board of the finality of a court-martial conviction is prohibited by law.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  Absent any mitigating factors, the type of discharge directed and the reasons were appropriate.  As a result, clemency is not warranted in this case.  In view of the circumstances in this case, he is not entitled to an upgrade of his BCD.

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.  deleting from Item 12f of his DD Form 214 the entry "0000  00  00" and replacing it with the entry "0000  03  13";
	b.  deleting from Item 13 of his DD Form 214 the entry "None//Nothing Follows";

	c.  adding to Item 13 of his DD Form 214 the:

* Army Commendation Medal
* National Defense Service Medal
* Kosovo Campaign Medal with one bronze service star
* Global War on Terrorism Service Medal
* Noncommissioned Officer Professional Development Ribbon
* Army Service Ribbon

	d.  adding to Item 18 of his DD Form 214 the entry "SERVICE IN KOSOVO FROM 19990615 - 19990927."

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 upgrading his bad conduct discharge.



      ___________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)                                         AR20110014684



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110014684


   
2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1