IN THE CASE OF:	

		BOARD DATE:	 8 August 2013 

		DOCKET NUMBER:  AR20120021169 


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 record to show the medical conditions for which he was retired were combat-related.

2.  In addition, the applicant requests he receive a retirement award and correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 3 October 2011 to show award of the:

* Army Superior Unit Award
* Army Good Conduct Medal (4th Award) 
* awards that were not carried forward from his DD Form 214 for the period ending 22 October 2005

3.  The applicant states his injuries are combat-related for his service in Iraq.  The applicant states having his service records corrected to show combat-related injuries would make him eligible for the Army Wounded Warrior Program (AW2). This would allow better care and additional benefits through the programs available.  The applicant states his unit and Warrior Transition Unit (WTU) turned their backs on him.

4.  The applicant states the Army Superior Unit Award was omitted from his
DD Form 214.  The applicant further states he did not receive a retirement award for his 16 years of service, nor did he receive the Army Good Conduct Medal
(4th Award) for his active duty service as a member of the U.S. Army Reserve (USAR).

5.  He provides: 

* DD Forms 214 for the period ending 22 October 2005 and 3 October 2011
* Army Superior Unit Award certificate dated in May 2000 and citation
* a variety of service medical documents
* a DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 
10 June 2011
* two DA Forms 2173 (Statement of Medical Examination and Duty Status), dated 28 and 29 September 2011 
* a DA Form 2166-8 (Noncommissioned Officer (NCO) Enlisted Evaluation Report (NCOER))

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army (RA) on 6 September 1995.  He completed training and he was awarded military occupational specialty 25L (Cable Systems Installer-Maintainer).

2.  On 9 April 1997, the applicant was assigned to the 414th Signal Battalion, Germany.

3.  Item 5 (Overseas Service) of the applicant's DA Form 2-1 (Personnel Qualification Record - Part II) shows he served on temporary duty (TDY) with his unit in the following locations:

* Sarajevo - 18 July 1997 to 1 April 1998
* Kosovo - 18 October 1999 to 10 December 1999
* Albania - 11 December 1999 to 26 December 1999
* Kosovo - 27 December 1999 to 4 January 2000

4.  On 25 December 2000, he was reassigned to the 385th Signal Company, Camp Doha, Kuwait.  On 30 June 2003, he was deployed to Baghdad, Iraq, in support of Operation Iraqi Freedom.  On 20 October 2003, he returned to Germany for hernia surgery.

5.  Three Standard Forms (SF) 600 (Chronological Record of Medical Care) show the following:

	a. On 19 November 2003, the applicant was examined by a military psychologist.  The applicant complained that he had asthma and a hernia repair had been causing him problems.  The military psychologist indicated the applicant described having periodic panic reactions to perceived changes in breathing that began a year earlier after dental surgery.  The applicant stated he had no energy or interest in any activity and he also indicated having insomnia, increased irritability, and problems with concentration.  The applicant had significant problems with his team leader, and was concerned that he might "lose control" of his anger.  At that time the applicant was taking medication for depression.  The applicant was diagnosed with anxiety disorder, not otherwise specified (NOS) with depressive features

	b. On 24 November 2003, he was examined by a military physician.  The physician indicated the applicant had persistent pain from his hernia repair.  The physician administered medical treatment for his hernia pain.

	c. On 26 July 2004, he was examined by a military physician.  The applicant complained of having insomnia for the last 3 months.  Since he came back from Iraq he had trouble getting sleep and staying awake.  He also stated he was very uncomfortable if other people stood too close to him.  He was diagnosed with mild sleep apnea.

6.  On 22 October 2005, he was honorably discharged from the RA after completing 10 years, 1 month, and 17 days of creditable active service.

7.  The applicant's DD Form 214 for the period ending 22 October 2005 shows he was awarded or authorized the:

* Joint Service Commendation Medal
* Army Achievement Medal (2nd Award)
* Presidential Unit Citation
* Meritorious Unit Commendation
* Army Good Conduct Medal (3rd Award)
* Iraq Campaign Medal
* National Defense Service Medal (2nd Award)
* Global War on Terrorism Expeditionary Medal
* Armed Forces Expeditionary Medal (2nd Award)
* Armed Forces Service Medal
* Global War on Terrorism Service Medal
* Noncommissioned Officer Professional Development Ribbon
* Army Service Ribbon
* Overseas Service Ribbon (3rd Award)
* North Atlantic Treaty Organization (NATO) Medal (Yugoslavia)
* NATO Medal (Kosovo)

8.  Section VIII (Awards and Decorations) of the applicant's Enlisted Record Brief (ERB) shows he received two awards of the NATO Medal.

9.  Item 9 (Awards, Decorations and Campaigns) of the applicant's DA Form 
2-1 shows he was awarded two NATO Medals. 

10.  Effective 23 October 2005, the applicant enlisted in the USAR for a period of 6 years. He was assigned to the 78th Division, 1st Brigade, 1st Simulation Exercise Group, Edison, NJ.

11.  Two Compensation and Pension examinations by the Department of Veterans Affairs (VA) show the following: 

	a. On 17 April 2006, he was examined by a VA physician.  He was given mental disorder examination, specifically for anxiety.  The physician determined the applicant suffered from medical conditions that were 0 percent service-connected for paralysis of ulnar nerve, inguinal hernia, degenerative arthritis, and benign skin neoplasm.  He was 10 percent service-connected for bronchial asthma.

	b. On 5 June 2006, a VA physician diagnosed him with moderate left ulnar neuropathy related to an injury to his left wrist in October 2000 and subsequent surgery of the left wrist.

12.  Orders 07-103-00023, issued by the 78th Division (Training Support), Edison, NJ, dated 13 April 2007, ordered the applicant to active duty effective
17 May 2007 for mobilization for Operation Enduring Freedom (other than homeland).

13.  On 2 June 2008, the applicant was retained on active duty and assigned to the WTU at Fort Dix, NJ, to participate in the Medical Retention Processing Program (MRP2).

14.  On 30 September 2010, the applicant received a neuropsychological evaluation assessment at the Department of Psychology, Walter Reed Army Medical Center (WRAMC), Washington, DC.  A neuropsychologist diagnosed the applicant with the following:

	a.  Axis I – anxiety disorder NOS mild to moderate, major depressive disorder, moderate, recurrent.

	b.  Axis II – schizoid personality traits with avoidant, dependent, and negativistic personality features.

	c.  Axis III – disc degeneration, dysphagia, ulnar nerve palsy, myalgia, chronic pain, migraine, cervicalgia, insomnia, hypertension, restless leg syndrome, sleep apnea, diplopia, hypogonadism.

	d.  Axis IV – occupational transition, legal difficulties, familial difficulties, financial difficulties, intra and interpersonal difficulties

15.  The applicant's Medical Evaluation Board (MEB) proceedings are not available for review.

16.  On 10 June 2011, an informal PEB convened at WRAMC, Washington, DC. The PEB found the applicant's conditions prevented him from performing the duties required of his grade and specialty and determined he was physically unfit due to various conditions.  The PEB rated him under the VA Schedule for Rating Disabilities (VASRD), and he was granted the following:

* headache syndrome, 50 percent
* anxiety disorder with depressive features, 30 percent
* degenerative disc disease, lumbar spine, 20 percent
* degenerative disc disease, 10 percent
* left foot arthritis, 10 percent
* residual iloinguinal neuralgia, status post hernia repair, 10 percent

17.  Item 10c (Disability Description) of the applicant's DA Form 199 shows the PEB determined the applicant's medical conditions were not battle injuries, the medical conditions were not caused by an instrumentality of war, and the medical conditions did not occur in a combat theater.  The PEB also considered his other medical condition(s) as listed by the MEB (depression, obstructive sleep apnea, diplopia, auditory processing disorder, attention deficit disorder); however, these conditions met retention standards and were not found to be unfitting and therefore they were not rated.  The PEB recommended the applicant's permanent disability retirement at a combined rating of 80 percent.

18.  Orders 189-0001, issued by Headquarters, U.S. Army Garrison, Fort Meade, MD, dated 8 July 2011, released the applicant from active duty on 3 October 
2011 by reason of permanent physical disability and placed him on the Retired List effective the following day at the rank/grade of staff sergeant (SSG)/E-6.  The orders stated "Disability resulted from a combat-related injury as defined in Title 26, U.S. Code, section 104:  NO." 

19.  On 3 October 2011, the applicant was retired under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4, by reason of permanent disability after completing
4 years, 4 months, and 17 days of creditable active service this period.

20.  The applicant's DD Form 214 for this period of service shows he was awarded or authorized the:
* Joint Service Commendation Medal
* Army Achievement Medal (2nd Award)
* Meritorious Unit Commendation
* Presidential Unit Citation
* Army Good Conduct Medal (3rd Award)
* National Defense Service Medal (2nd Award)
* Armed Forces Expeditionary Medal (2nd Award)
* Global War on Terrorism Expeditionary Medal
* Global War on Terrorism Service Medal
* Armed Forces Service Medal
* Iraq Campaign Medal with one bronze service star
* Noncommissioned Officer Professional Development Ribbon
* Army Service Ribbon
* Overseas Service Ribbon (3rd Award)
* Armed Forces Reserve Medal with "M" Device
* NATO Medal 

21.  There is no evidence of record and the applicant did not provide any evidence that shows he was recommended for or awarded an award at the time of his medical retirement.

22.  There is no evidence the applicant was recommended for or awarded the Army Good Conduct Medal (4th Award).  There also is no evidence of any adverse information or a commander's disqualification that would have precluded the applicant from being recommended for or awarded the fourth award of the Army Good Conduct Medal (4th Award).

23.  The applicant provided a copy of a certificate awarding his unit, the
414th Signal Battalion, the Army Superior Unit Award for meritorious performance of a difficult challenging mission during the period 1 April 1999 to March 2000.  Lineage and honors for the 414th Signal Company from the U.S. Center for Military History shows the 414th Signal Company was awarded the Army Superior Unit Award for the period 1999 to 2000.

24.  Army Regulation 635-40 establishes the PDES and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  It states a disability may be considered a direct result of armed conflict if it was incurred while the Soldier was engaged in armed conflict or in an operation or incident involving armed conflict or the likelihood of armed conflict; if a direct causal relationship exists between the armed conflict or the incident or operation and the disability; or if the disability which is unfitting was caused by an instrumentality of war and was incurred in the line of duty during a period of war.  A determination that a disability was caused by an instrumentality of war and incurred in the line of duty will be appropriate only when it is also determined that the disability so incurred in itself renders the member physically unfit and was incurred during one of the periods of war as defined by law.

25.  Title 26, U.S. Code, section 104, states the term "combat-related injury" means personal injury or sickness that is incurred as a direct result of armed conflict, while engaged in extra hazardous service, under conditions simulating war; or which is caused by an instrumentality of war.

26.  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, unit decorations, and similar devices awarded in recognition of accomplishments.  It states:

	a.  The Army Good Conduct Medal is awarded to individuals who distinguish themselves by their conduct, efficiency, and fidelity during a qualifying period of active duty enlisted service.  This period is 3 years except in those cases when the period for the first award ends with the termination of a period of Federal military service.  Although there is no automatic entitlement to the Army Good Conduct Medal, disqualification must be justified.

	b.  The NATO Medal was approved by the Secretary of Defense for acceptance and wear for the listed missions/operations, including operations 
related to the former Republic of Yugoslavia (14 November 1995 to a date to be determined) and operations related to Kosovo (13 October 1998 to a date to be determined).  For subsequent awards as approved by the Secretary of Defense for service in a different NATO operation, U.S. military personnel will affix a bronze service star to the NATO Medal suspension ribbon and service ribbon.

	c.  It is the responsibility of any individual having personal knowledge of an act, achievement, or service believed to warrant the award of a decoration, to submit a formal recommendation into military command channels for consideration.  The Army does not condone self-recognition; therefore, a Soldier may not recommend himself/herself for award of a decoration.  Each individual approaching retirement may be considered for an appropriate decoration based on his or her grade, years of service, degree of responsibility, and manner of performance.

27.  By message, dated 8 February 2005, the Military Awards Branch, U.S. Army Human Resources Command, provided clarification on award of the Army Good Conduct Medal.  It stated Reserve Component (RC) Soldiers mobilized onto active duty under Title 10 are performing "active Federal military service" and are therefore eligible to be awarded the Army Good Conduct Medal.  The qualifying periods of service must be continuous enlisted active Federal service.  The period of service for the Army Good Conduct Medal begins and the Army Reserve Components Achievement Medal (ARCAM) ends the first day the mobilized RC Soldier is serving on active duty.  The period of service for the Army Good Conduct Medal ends the last day the mobilized RC Soldier is on active duty.  The period of service for the ARCAM begins the day after the RC Soldier is off active duty.

28.  Title 10, U.S. Code, section 1130 provides the legal authority for consideration of proposals for decorations not previously submitted in timely fashion.  It allows, in effect, that upon the request of a Member of Congress, the Secretary concerned shall review a proposal for the award or presentation of a decoration (or the upgrading of a decoration), either for an individual or a unit, that is not otherwise authorized to be presented or awarded due to limitations established by law or policy for timely submission of a recommendation for such award or presentation.  Based upon such review, the Secretary shall make a determination as to the merits of approving the award or presentation of the decoration.

29.  The request, with a DA Form 638 (Recommendation for Award), must be submitted through a Member of Congress to the Secretary of the Army at the 
following agency:  Commander, U.S. Army Human Resources Command, ATTN: AHRC-PDP-A, 1600 Spearhead Division Avenue, Fort Knox, KY 40122.  The applicant's unit must be clearly identified, along with the period of assignment and the award being recommended.  A narrative of the actions or period for which recognition is being requested must accompany the DA Form 638.  Requests for consideration of awards should be supported by sworn affidavits, eyewitness statements, certificates, and related documents.  Corroborating evidence is best provided by commanders, leaders and fellow Soldiers who had personal knowledge of the circumstances and events relative to the request.  The burden and costs for researching and assembling documentation to support approval of requested awards and decorations rest with the requestor.



DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was assigned to the 414th Signal Company during a period for which the unit was awarded the Army Superior Unit Award.  Therefore, his DD Form 214 for the period ending 3 October 2011 should be corrected to show this unit award.

2.  On 17 May 2007, the applicant was ordered to active duty in support of Operation Enduring Freedom.  On 3 October 2011, he was retired in the rank/grade of SSG/E-6 with 4 years, 4 months, and 17 days of creditable active service with no time lost.  There is no evidence of any derogatory information or a commander's disqualification that would have precluded him from being recommended for or awarded the 4th award of the Army Good Conduct Medal.  Based on HRC's clarifying message and in view of the foregoing, it would be appropriate at this time to award the applicant the Army Good Conduct Medal (4th Award) for the period 17 May 2007 through 16 May 2010 and to correct his DD Form 214 for the period ending 3 October 2011 to show this award.

3.  The applicant requests correction of his DD Form 214 for the period ending 3 October 2011 to show awards that were not carried forward from his DD Form 214 for the period ending 22 October 2005.  His DD Form 214 for the period ending 22 October 2005 shows two awards of the NATO Medal, but the DD Form 214 for the period ending 3 October 2011 shows only one NATO Medal.  His record confirms he was awarded two NATO Medals.  Therefore, his DD Form 214 for the period ending 3 October 2011 should be corrected to show a second award of the NATO Medal.

4.  Combat-related injuries are those injuries incurred as a direct result of armed conflict, while engaged in extra hazardous service, under conditions simulating war, or caused by an instrumentality of war.  The available records do not show that any of his medical conditions were combat related.  Therefore, there is an insufficient evidentiary basis for granting this portion of his request.

5.  The applicant contends he should have received an award at the time of his retirement.  There is no evidence showing he was recommended for or awarded a retirement.  Accordingly, there is no basis for correcting his record to show he received an award at the time of his retirement.

6.  While the available evidence is insufficient for awarding the applicant a retirement award, this in no way affects the applicant’s right to pursue his claim for a retirement award by submitting a request through his Member of Congress under the provisions of Title 10, U.S. Code, section 1130.

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 his DD Form 214 for the period ending 3 October 2011 the NATO Medal;

	b.  awarding him the Army Good Conduct Medal (4th Award) for the period
17 May 2007 through 16 May 2010; and

	c.  adding to his DD Form 214 for the period ending 3 October 2011 the:

* Army Good Conduct Medal (4th Award)
* Army Superior Unit Award 
* NATO Medal with one bronze service star

2.  The Board further determined that the evidence presented was 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 correcting his DD Form 214 for the period ending 3 October 2011 to show the medical conditions for which he was retired was combat-related or that he was award a retirement award.



      ____________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)                                         AR20120021169



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ABCMR Record of Proceedings (cont)                                         AR20120021169



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