IN THE CASE OF:  

		BOARD DATE:  4 January 2013

		DOCKET NUMBER:  AR20120010074


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 (Certificate of Release or Discharge from Active Duty) to show:

* his foreign service in Iraq in support of Operation Iraqi Freedom (OIF)
* the individual and unit awards he is entitled to for his service in OIF, including the Purple Heart

2.  The applicant also requests upgrade of his under other than honorable conditions discharge. 

3.  He states he served in Iraq and that service is not shown in his records.  He further states he was injured in Iraq but never received the Purple Heart.

4.  On a separate attached sheet, he provides the following reasons he believes his discharge should be upgraded:

* his average conduct and efficiency ratings, behavior, and proficiency marks were either good or pretty good
* he received awards and decorations
* he had combat service and was wounded in action
* he has been a fairly good citizen since he was discharged
* his ability to serve was impaired by his youth and immaturity
* his low aptitude scores and level of education impaired his ability to serve
* his ability to serve was impaired by his deprived background, as well as personal and financial problems
He further states the presumption of regularity that might normally permit the Board to assume the Army acted correctly in characterizing his service as less than honorable does not apply to his case because of the evidence he has submitted.

5.  The applicant provides his DD Form 214 and a copy of his DD Form 1380 (U.S. Field Medical Card), dated 31 December 2003.

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.  With respect to his request for the Purple Heart based on his service in Iraq in support of OIF, the ABCMR operates under the procedures set forth in Army Regulation 15-185, which provide that the ABCMR will not consider any application until the applicant has first exhausted all other administrative remedies to correct the alleged error or injustice.  

3.  Requests for award of the Purple Heart that involve service in support of Operations Enduring Freedom, Iraqi Freedom, or New Dawn must be forwarded to the Commander, U.S. Army Human Resources Command (HRC) (AHRC-PDP-A), 1600 Spearhead Division Avenue, Fort Knox, KY 40122.  Since the applicant is no longer on active duty or in an active status, he may request this award by letter.  This portion of the applicant’s request will not be discussed further in these Proceedings.  

4.  The applicant enlisted in the Regular Army on 17 October 2002.  He completed initial entry training and was awarded military occupational specialty 88M (Motor Transport Operator). 

5.  His Army Military Human Resource Record (AMHRR) contains a DD Form 2329 (Record of Trial by Summary Court-Martial) which shows he was charged with, pled guilty to, and was convicted by a summary court-martial of a single specification of Charge 1, for violating Article 86 of the Uniform Code of Military Justice (UCMJ).  Specifically, he was charged with being absent without leave (AWOL) from on or about 7 July 2004 to on or about 4 August 2004.

6.  On 8 December 2004, he received nonjudicial punishment under the provisions of Article 15, UCMJ, for wrongfully using marijuana on an unspecified date.

7.  On 24 March 2005, court-martial charges were preferred against him for:

* a single specification of Charge 1, for violating Article 112a of the UCMJ; specifically, for wrongfully using marijuana during the period 11 December 2004 to 11 January 2005
* a single specification of Charge 2, for violating Article 121 of the UCMJ; specifically, for stealing a wallet, military identification card, Army and Air Force Exchange Service (AAFES) Star Card, BB&T Bank Checking Card, and U.S. currency, of a value of $500.00 or less, from a fellow Soldier

8.  On 4 April 2005, he consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter     10 of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations).

9.  In his request for discharge, he indicated he was making this request of his own free will and he had not been subjected to any coercion whatsoever by any person.  He also indicated he understood that by requesting discharge, he was admitting guilt to the charges against him or of lesser-included offenses that also authorized the imposition of a bad conduct discharge or a discharge under other than honorable conditions.  He further acknowledged he understood if the discharge request were approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He elected not to submit statements in his own behalf.

10.  On or about 15 April 2005, the separation authority approved his voluntary request for discharge in lieu of trial by court-martial in accordance with Army Regulation 635-200, chapter 10, and directed that he receive an under other than honorable conditions discharge.

11.  On 19 May 2005, he was discharged accordingly.  The DD Form 214 he was issued shows he was credited with the completion of 2 years, 7 months, and       3 days of net active service during this period of enlistment.  Additionally, his DD Form 214 shows:

   a. Item 12f (Record of Service – Foreign Service) he completed 1 month and 9 days of foreign service.

   b. Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) he was awarded the:

* Army Achievement Medal
* National Defense Service Medal
* Global War on Terrorism Expeditionary Medal (GWOTEM)
* Global War on Terrorism Service Medal
* Army Service Ribbon
* Parachutist Badge

   c. Item 18 (Remarks) of his DD Form 214 contains the entry "SERVICE IN OPERATION ENDURING FREEDOM (OEF) (AFGHANISTAN) FROM 20040923 to 20041101."

   d. Item 23 (Type of Separation) shows he was discharged.

   e. Item 24 (Character of Service) shows he received an Under Other than Honorable Conditions discharge.

   f. Item 25 (Separation Authority) shows he was discharged under the provisions of Army Regulation 635-200, chapter 10.

   g. Item 28 (Narrative Reason for Separation) shows he was discharged in lieu of trial by court-martial.

12.  His AMHRR contains a DA Form 4187 (Personnel Action), recommendation for award of the Purple Heart, on which his battalion and brigade commanders each signed their name, attesting to his receipt of combat wounds in Iraq on     30 December 2003.  Additionally, his AMHRR contains several witness statements from the improvised explosive device (IED) blast event that attest to the wounds being received in Iraq.  

13.  Defense Finance and Accounting Service (DFAS) records show he received hostile fire/imminent danger pay and combat zone tax exclusion for:

* Service in Kuwait from 20 August 2003 through 8 April 2004
* Service in Afghanistan from 23 September 2004 through 1 November 2004

14.  On 23 April 2009, the Army Discharge Review Board (ADRB) reviewed his request for upgrade of his under other than honorable conditions discharge.  After careful consideration, the ADRB determined the reason for his discharge and the characterization of his service were both proper and equitable and voted to deny relief.

15.  Army Regulation 600-8-22 (Military Awards) states the Afghanistan Campaign Medal is awarded to members who have served in direct support of OEF.  The area of eligibility encompasses all the land area of the country of Afghanistan and all air spaces above the land.  The Afghanistan Campaign Medal period of eligibility is on or after 24 October 2001 to a future date to be determined by the Secretary of Defense or the cessation of OEF.

16.  Military Personnel (MILPER) Message Number 08-123, dated 30 April 2008, designated three campaigns for the Afghanistan Campaign Medal:  Liberation of Afghanistan from 11 September 2001 to 30 November 2001; Consolidation I from 1 December 2001 to 30 September 2006; and Consolidation II from 1 October 2006 to a date to be determined.  Furthermore, Army Regulation 600-8-22 states a bronze service star will be awarded for wear on the Afghanistan Campaign Medal for participation in each credited campaign.

17.  Army Regulation 600-8-22 states the Iraq Campaign Medal was authorized by Public Law 108–234, dated 28 May 2004 and Executive Order 13363, dated 29 November 2004 (emphasis added).  It states the Iraq Campaign Medal is awarded to members who served in direct support of OIF.  The area of eligibility encompasses all the land area of the country of Iraq, the contiguous water area out to 12 nautical miles, and all air spaces above the land area of Iraq and above the contiguous water area out to 12 nautical miles.  The Iraq Campaign Medal period of eligibility is on or after 19 March 2003 to 31 December 2011. 

18.  Army Regulation 600-8-22 states that service members qualified for the Global War on Terrorism Expeditionary Medal by reason of service between     19 March 2003 and 28 February 2005, in an area for which the Iraq Campaign Medal was subsequently authorized, will remain qualified for that medal.  Upon application, any such service member may be awarded the Iraq Campaign Medal in lieu of the Global War on Terrorism Expeditionary Medal for such service.  No service member will be entitled to both medals for the same act, achievement, or period of service (emphasis added).  

19.  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. 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. 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for correction of his DD Form 214 to show his foreign service and corresponding awards for which he is entitled, based on his service in Iraq in support of OIF, was carefully considered.

2.  DFAS documentation credits him with service in Kuwait from 20 August 2003 through 8 April 2004; however, documents within his AMHRR show he was injured in Iraq during that same period.  Since Soldiers deployed into Iraq from Kuwait, it is reasonable to conclude his period of service was performed in Iraq.  Thus, it would be appropriate to correct his DD Form 214 to show his foreign service in Iraq.

3.  Army Regulation 600-8-22 states the Iraq Campaign Medal was not authorized until 28 May 2004, and the appropriate award for OIF service prior to the implementation of the Iraq Campaign Medal was the GWOTEM.  His DD Form 214 shows he was awarded the GWOTEM; therefore, he was awarded the appropriate award for his service in OIF.  However, upon request, he may reapply to the Board for award of the Iraq Campaign Medal in lieu of the GWOTEM.

4.  The evidence of record shows he served in Afghanistan from 23 September 2004 through 1 November 2004; a period of service already annotated on his DD Form 214.  This period is longer than 30 days; therefore, he is entitled to the Afghanistan Campaign Medal and to correction of his DD Form 214 to show the Afghanistan Campaign Medal with 1 bronze service star.

5.  The applicant also requests upgrade of his under other than honorable conditions discharge. 

6.  His AMHRR shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.

7.  The available evidence shows he requested discharge in lieu of trial by court-martial – voluntarily, willingly, and in writing.  He was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no indication of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

8.  The challenges he offered as reasons for upgrading his discharge are noted; however, they do not diminish the seriousness of the offenses he committed.

9.  Based on his record of misconduct, including a summary court-martial and charges involving illegal drug usage and theft, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to an honorable or a general discharge.

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:

* amending item 12f of his DD Form 214 to read "0000-08-27"
* amending item 13 of his DD Form 214 to add the Afghanistan Campaign Medal with 1 bronze service star
* amending item 18 of his DD Form 214 to add the entry "SERVICE IN KUWAIT/IRAQ FROM 20030820 – 20040408"

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 the upgrading his under other than honorable conditions 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)                                         AR20100011932



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ABCMR Record of Proceedings (cont)                                         AR20120010074



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