IN THE CASE OF:	  

		BOARD DATE:	  15 August 2013

		DOCKET NUMBER:  AR20120021112 


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 upgrade of his bad conduct discharge (BCD) to a general discharge (GD), under honorable conditions discharge.

2.  The applicant states:

   a.  his discharge was based on one incident, not his whole career;
   
   b.  he made a terrible mistake at the end of his military career that affected his family, his unit, and himself;
   
   c.  he was an exemplary Soldier who was free of any bad conduct from the time he entered the Army until he made this mistake; 
   
   d.  while he regrets leaving his Soldiers and family, he did not want to hurt them or himself and as a result, he left when he did not receive the help he desperately needed and sought; and
   
   e.  his discharge should be upgraded to reflect his entire military career and the one mistake at the end of his service.

3.  Counsel additionally requests, in effect, the applicant be awarded all awards to which he may be entitled.  He also states that the applicant's service in Iraq as an infantryman and multiple wartime deployments should be considered when rendering a decision on his case.  

4.  The applicant provides:

* résumé
* two self-authored statements
* Standard Form 513 (Medical Record-Consultation Sheet)
* Email (Naval Consolidated Brig-Charleston), dated 2 December 2008
* 52 documents from his Army Military Human Resource Record (AMHRR) (formerly known as official military personnel file) 
* four character reference statements
* National Center for Construction Education and Research (NCCER) Official Transcript
* St. John Fisher College, Office of the Registrar Transcript

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military records show he enlisted in the Regular Army on 24 July 2002.  He was trained in and served in military occupational specialty 11B (Infantryman).

2.  The applicant was promoted to the rank of sergeant (SGT/-E-5) on 1 October 2005, and this was the highest rank he attained while serving on active duty.

3.  The applicant's AMHRR includes an Army Commendation Medal (ARCOM) certificate.  It shows:

   a.  it was awarded him for meritorious service in support of Operation Iraqi Freedom III for the period 21 January 2005 to 10 January 2006; and
   
   b.  his skill and professionalism helped defeat the enemies of freedom and established a safe and secure Iraq.

4.  His AMHRR also includes a DA Form 1059 (Service School Academic Evaluation Report).  It shows he successfully completed the Warrior Leader Course (WLC) at the U.S. Army Noncommissioned Officer Academy during the period 20 September through 4 October 2006.

5.  The applicant's AMHRR includes a Memorandum of Reprimand, dated 13 February 2007.  It shows it was issued to him after he was cited by a Savannah, Georgia police officer for driving while under the influence of alcohol on 4 February 2007.


6.  Headquarters, 3rd Infantry Division and Fort Stewart, Fort Stewart, Georgia, published General Court-Martial (GCM) Order Number 18, dated 23 July 2009.  It shows, pursuant to his plea, the applicant was found guilty of violating Article 85 of the Uniform Code of Military Justice (UCMJ) with the intent to avoid hazardous duty, depart his unit on 17 September 2007 and remain absent in desertion until 2 May 2008.

7.  The approved sentence was a BCD, confinement for 10 months, and reduction to private (PVT/E-1).

8.  GCM Order Number 2, Headquarters, U.S. Army Accessions Command and Fort Knox, Fort Knox, Kentucky, dated 13 January 2011, directed that the BCD be executed.  On 28 March 2011, the applicant was discharged accordingly.

9.  The DD Form 214 issued to the applicant confirms he had continuous honorable service from 24 July 2002 through 27 October 2005.  It also shows he was discharged under the provisions of chapter 3, Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), due to court-martial, having completed 7 years and 3 months of net active service and accruing lost time from 17 September 2007 – 2 May 2008 and from 8 May 2008 – 26 February 2009.

10.  His DD Form 214 also includes the following entries as shown:

* Item 12f (Foreign Service) – "0000 00 00"
* Item 13 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) shows he earned the following awards - 

* ARCOM
* Meritorious Unit Commendation
* Army Good Conduct Medal
* National Defense Service Medal
* Global War on Terrorism Service Medal
* Army Service Ribbon

* Item 14 (Military Education) – "NONE//NOTHING FOLLOWS"

11.  The applicant provides three character reference statements which indicate he:

* is an impeccable performer on the job
* has excellent communication skills
* is punctual and dependable
* is very calm and patient with the disabled
* is a hard worker and valuable asset

12.  In the fourth and final character reference statement, his father-in-law, a retired sergeant first class, provides:

   a.  the applicant was a well mannered, good looking Soldier prior to his deployments;
   
   b.  things seemed to have changed after the applicant's first deployment and while at home on the mid-tour break of his third deployment, the applicant detailed his assistance with the graveside ceremonies for his fallen comrades, indicating he could not go back no matter what;
   
   c.  he seemed withdrawn and did not want to be involved in anything with his family, work, or fun and at some point, he and wife were attending divorce classes and seminars;
   
   d.  the applicant went on several appointments at the Winn Army Hospital and to see the chaplain regarding his feelings at work and home, and his mental state; and
   
   e.  the applicant was a very impressive Soldier who received high ratings from superiors and while he did not think he did the right thing by just walking away from the Army at the time, he and his wife have reconciled and are trying to get on with life the best they can while the applicant continues to adjust to being outside the combat zone, considering the circumstances.

13.  A review of the applicant’s Defense Finance and Accounting Service (DFAS) military pay record shows he served in Kuwait, an area where hostile fire/imminent danger pay (HF/IDP) was authorized, during the following periods:

* 20030219 through 20030809
* 20050120 through 20060106
* 20070513 through 20070916

14.  The applicant provides a certificate of training which shows he successfully completed a 40-hour Combat Lifesaver Course during the period 26 - 29 January 2004.

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 provides the policies and procedures for separating members with a dishonorable or bad conduct discharge.  It stipulates that a Soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial and that the appellate review must be completed and affirmed before the BCD portion of the sentence is ordered duly executed.

16.  Army Regulation 635-200, 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.  

17.  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 Army Board for Correction of Military Records 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.

18.  Army Regulation 600-8-22 (Military Awards) prescribes the Army's awards policy.  

	a.  Paragraph 2-17 states the Iraq Campaign Medal (ICM) is awarded to members who have served in direct support of Operation Iraqi Freedom (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 ICM period of eligibility is on or after 19 March 2003 to 31 December 2011.  A bronze service star is authorized for wear with this medal for participation in each credited campaign.  During the applicant's service, credit was authorized for the following campaigns:

* Iraqi Governance (29 June 2004-15 December 2005)
* National Resolution (16 December 2005-9 January 2007)
* Iraqi Surge (10 January 2007-31 December 2008)
   
   b.  Paragraph 2-18 contains guidance on the Global War on Terrorism Expeditionary Medal (GWOTEM).  It states that this award is authorized to members who deployed abroad for service in GWOT operations on or after 11 September 2001 to a date to be determined.  Effective 30 April 2005, the GWOTEM is no longer authorized to be awarded for service in Iraq.
   
   
c.  Paragraph 5-6 contains guidance on award of the Noncommissioned Officer Development Ribbon (NCOPDR).  It is awarded to enlisted members who successfully complete a designated NCO professional development course.  This award consists of the basic ribbon with numeral devices of 2, 3, or 4, to signify satisfactory completion of the respective levels of NCO professional development.  Once a service member has been awarded the NCOPDR, upon graduation from the WLC (formerly known as the Primary Leadership Professional Development Course), subsequent appropriate numerals will be awarded to identify completion of higher level courses within the NCO Education System.

19.  Paragraph 5-4 contains guidance on the OSR.  It states that it is authorized for completion of normal overseas tours as defined in Army Regulation 614-30 (Overseas Service).

20.  Army Regulation 614-30 provides policy and guidance on the eligibility and selection criteria for overseas service and establishment of tour lengths for overseas areas.  Table 3-2 contains guidance on award of tour credit and states, in pertinent part, that in order to receive tour credit for temporary change of station/temporary duty service in isolated areas where tour lengths have not been established (Iraq/Afghanistan), a member must complete 11 cumulative months in a 24-month period or 9 continuous months (15 or more days in a month will round up, so 10 months and 15 days rounds up to 11, and 8 months 15 days rounds up to 9).

21.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that are prepared for individuals upon retirement, discharge, or release from active military service or control of the Army.  It also establishes standardized policy for preparing and distributing the DD Form 214.

   a.  Paragraph 2-4(12f) states to enter the total amount of foreign service completed during the period covered by the DD Form 214. 

   b.  Paragraph 2-4h(13) states to list awards and decorations for all periods of service in priority, as listed in Army Regulation 600-8-22, which does not include certificates of achievement.

   c  Paragraph 2-4h(14) states that formal in-service (full-time attendance) training courses successfully completed during the period of service covered by the DD Form 214 will be listed in item 14 in weeks.  This information is to assist the Soldier in job placement and counseling; therefore, training courses for combat skills will not be listed.

   d.  Paragraph 2-4(18) states 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)."

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his BCD should be upgraded to a GD and his counsel contends he is entitled to additional awards.  There is sufficient evidence to support granting a portion of the requested relief.

2.  The applicant's DFAS record confirms he served in Kuwait/Iraq on three separate occasions; of which the first and last periods which were from 
19 February through 9 August 2003 (5 months and 10 days) and 13 May through 16 September 2007 (4 months and 3 days).  His ARCOM certificate, which shows a more a favorable period than his DFAS record, shows he served his second deployment from 21 January 2005 – 10 January 2006 (11 months and 6 days).  His first deployment entitles him to the GWOTEM, his second tour entitles him to the ICM with two bronze service stars and OSR, and during his third tour he earned an additional bronze service star to be affixed with his ICM.  Accordingly, based on the applicant's service in Kuwait/Iraq, his DD Form 214 should be corrected to add/show the following entries in the items indicated:

* Item 12f -  "0001 08 29"
* Item 13 – "GWOTEM, ICM with three bronze service stars, and OSR"
* item 18 - "SERVICE IN KUWAIT/IRAQ FROM 20030219 – 20030809,  20050121 – 20060110, AND 20070513 - 20070916"

3.  The evidence of record shows the applicant successfully completed a 2-week WLC on 4 October 2006 and a 40-hour Combat Lifesaver Course on 29 January 2004.  The applicant's completion of WLC entitles him to the NCOPDR and it should be added to item 13 of his DD Form 214.  In addition both of these courses should be added to item 14 of his DD Form 214 at this time.

4.  The evidence of record shows the applicant completed an oversea deployment with his The evidence of record confirms the applicant’s trial by court-martial was warranted by the gravity of the offense charged.  His conviction and discharge were effected in accordance with applicable law and regulations and the final discharge appropriately characterized the misconduct for which the applicant was convicted.  In addition, his contention his charge of desertion was the only misconduct he participated in throughout his military career is in direct contradiction with the Memorandum of Reprimand he received for driving while under the influence of alcohol.
5.  The applicant's post-service conduct, as described in his character reference statements, is admirable.  However, this does not sufficiently mitigate the serious criminal offense that resulted in his court-martial conviction.  Therefore, given the gravity of the offense that resulted in his GCM conviction and BCD, his overall record of service and post-service conduct are not sufficiently meritorious to support clemency in this case.

6.  Any redress by this BCMR of the finality of a court-martial conviction is prohibited by law.  The ABCMR is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  Given the absence of any mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted in this case.

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:

* by amending the following entries of his DD Form 214 as indicated below:
   
* item 12f – show "0000 11 16"
* item 13 – add the Global War on Terrorism Expeditionary Medal, Iraq Campaign Medal with three bronze service stars, Noncommissioned Officer Professional Development Ribbon, and Overseas Service Ribbon
* item 14 – add "Combat Lifesaver Course, 1 week, 2004" and "Warrior Leadership Course, 2 weeks, 2006"
* item 18 - add "SERVICE IN KUWAIT/IRAQ FROM 20030219 – 20030809,  20050121 – 20060110, AND 20070513 - 20070916"

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)                                         AR20120021112





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ABCMR Record of Proceedings (cont)                                         AR20120021112



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