IN THE CASE OF:	  

		BOARD DATE:	  4 December 2012

		DOCKET NUMBER:  AR20120009691 


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, reconsideration of his request to be retired in the pay grade of E-7.  As a new issue, he requests that his service in support of Operations Iraqi Freedom and Enduring Freedom be reflected on his DD Form 214 (Certificate of Release or Discharge from Active Duty). 

2.  The applicant states that he requests to be retired in the pay grade of E-7, the highest grade he held, because of his disabilities.  He also requests that his     DD Form 214 be corrected to reflect his service in Kuwait/Iraq from 20030128 – 20030728. 

3.  The applicant provides copies of his DD Form 214, medical deployment checklist, deployment orders, and retirement orders.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20090021741 on 15 July 2010.

2.  After serving in the U.S. Army Reserve, he enlisted in the Regular Army on   10 November 1987.  He remained on active duty through a series of continuous reenlistments and was promoted to the pay grade of E-7 on 1 December 2001.

3.  He deployed to Kuwait/Iraq on 28 January 2003 and was medically evacuated from Iraq to Germany on 28 July 2003 due to hypertension.

4.  On 10 September 2004, he was convicted by a general court-martial of being absent without leave (AWOL) from 15 June to 19 July 2003 while in Iraq, three specifications of failure to go to his place of duty, behaving with disrespect towards a superior commissioned officer, and disobeying lawful orders from a superior commissioned officer.  He was sentenced to confinement for 30 days, a forfeiture of $500.00 pay per months for 6 months, and reduction to the pay grade of E-6.

5.  On 21 April 2007, the applicant was honorably retired in the pay grade of E-6 by reason of permanent disability.  He had served 19 years, 3 months, and 19 days of active service and his DD Form 214 issued at the time of his retirement does not reflect his service in Kuwait/Iraq.  Item 12f (Foreign Service) of his DD Form 214 does not show any foreign service.  His awards include the Global War on Terrorism Expeditionary Medal (GWOTEM) but not the Iraq Campaign Medal (ICM).

6.  On 1 December 2009, the applicant applied to the Board requesting that he be retired in the pay grade of E-7 or E-8 contending that his disability (ongoing cardiac problem plus back problems, plantar fasciitis, and migraines) was the cause of the misconduct for which he was convicted and resulted in his reduction in grade.

7.  On 15 July 2010, after reviewing the evidence in his case, the Board determined that he had been properly retired in the highest grade in which he satisfactorily served on active duty and denied his request for advancement on the Retired List.

8.  Information received from the Defense Finance and Accounting Service (DFAS) indicates the applicant received hostile fire/imminent danger pay and combat zone tax exclusion from 20030201 – 20030713. 

9.  Army Regulation 635-5 serves as the authority for the preparation of the      DD Form 214.  It states an entry will be made in the remarks section of the      DD Form 214 to reflect the country in which a Soldier has deployed and the period of deployment.  

10.  Title 10, U.S. Code, Section 1372 provides that, "unless entitled to a higher retired grade under some other provision of law, any member of an armed force who is retired for physical disability or whose name is placed on the temporary disability retired list is entitled to the grade equivalent to the highest of the following:
   
   (1)  The grade or rank in which he is serving on the date when his name is placed on the temporary disability retired list or if his name was not carried on that list, on the date when he is retired.

     (2)  The highest temporary grade or rank in which he served satisfactorily, as determined by the Secretary of the armed force from which he is retired.

   (3)  The permanent Regular Army or Reserve grade to which he would have been promoted had it not been for the physical disability for which he is retired and which was found to exist as a result of a physical examination.

   (4)  The temporary grade to which he would have been promoted had it not been for the physical disability for which he is retired.

11.  Army Regulation 600-8-22 (Military Awards) states the GWOTEM is authorized for award to members of the Armed Forces of the United States who deployed abroad for service in the Global War on Terrorism operations on or after 11 September 2001 to a date to be determined.  The general area of eligibility (AOE) encompasses all foreign land, water, and air spaces outside the fifty states of the United States and outside 200 nautical miles of the shores of the United States in operations approved by the Secretary of Defense, to include Kuwait. 

12.  Army Regulation 600-8-22 states the ICM is awarded to members who have served in direct support of Operation Iraqi Freedom.  The Iraq Campaign Medal period of eligibility is on or after 19 March 2003 through 31 December 2011.  A bronze service star is authorized for wear with this medal for participation in each credited campaign.  Approved campaigns include:

* Liberation of Iraq (19 March 2003-1 May 2003)
* Transition of Iraq (2 May 2003-28 June 2004)

DISCUSSION AND CONCLUSIONS:

1.  There is sufficient evidence to show that the applicant deployed to Kuwait/Iraq from 20030128 to 20030728.  Accordingly, he is entitled to have his DD Form 214 corrected to reflect in the remarks section of his DD Form 214 that he had service in Kuwait/Iraq from 20030128 to 20030728. 

2.  As related issues, the applicant’s DD Form 214 should also be amended in item 12f to show 6 months and 1 day of foreign service.  The ICM with two bronze service stars should also be added to his DD Form 214.

3.  However, the applicant was reduced in grade by a general court-martial for multiple offenses and it appears that his service in the pay grade of E-7 was not deemed satisfactory service as he was retired in the pay grade of E-6.

4.  While the applicant asserts that his medical condition caused his misconduct, he has not provided evidence to support that contention.  There is no evidence to show he was mentally incapable of realized his actions were wrong.

5.  Therefore, absent evidence to show otherwise, it appears that the highest grade in which he served satisfactorily was the pay grade of E-6 and he was properly retired in the pay grade.  Accordingly, there appears to be no basis to grant his request for advancement on the Retired List.

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 was sufficient to warrant a recommendation for partial relief.
  
2.  In regard to the request for reconsideration, 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 to amend the decision of the ABCMR set forth in Docket Number AR20090021741 dated 15 July 2010.

3.  In regard to the new issues, the Board determined that the evidence presented was sufficient to warrant a recommendation for 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     21 April 2007:
     a.  by adding the entry “Service in Kuwait/Iraq 20030128 to 20030728” in block 18;

     b.  by showing he completed 6 months and 1 day of foreign service in block 12f; and

     c.  by adding the Iraq Campaign Medal with two bronze service stars.




      _______ _ 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)                                         AR20120009691





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ABCMR Record of Proceedings (cont)                                         AR20120009691



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