BOARD DATE:	  16 July 2013

		DOCKET NUMBER:  AR20120021869 


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 numerous items on his DD Form 214 (Certificate of Release or Discharge from Active Duty) and an upgrade of his bad conduct discharge to an under honorable conditions (general) discharge.

2.  The applicant states the entries on his DD Form 214 pertaining to his military education, primary specialty, foreign service, total active service, awards and decorations, last duty assignment and major command, and command to which transferred are incorrect.

   a.  He states that he was an excellent Soldier before going to Iraq and seeing the damage that improvised explosive devices and the war inflicted on him, fellow Soldiers, friends, and families.  He adds that he sought help from his superiors, but they didn't offer him any help in dealing with his problems.

   b.  When he returned from Iraq he started having problems with depression and his use of alcohol.  He is homeless and his discharge does not allow him to receive veterans' benefits to help him deal with his problems.

3.  The applicant provides no additional documentary evidence in support of his request.

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.  The applicant enlisted in the U.S. Army Reserve, Delayed Entry Program (DEP) on 18 July 2002 and he further enlisted in the Regular Army (RA) on
24 September 2002 for a period of 3 years.

3.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows:

   a. item 5 (Oversea Service):  is blank (no entries);

   b.  item 6 (Military Occupational Specialties (MOS)):  is blank (no entries);

   c.  item 9 (Awards, Decorations and Campaigns):  

* Army Service Ribbon
* National Defense Service Medal

   d.  item 17 (Civilian Education and Military Schools):

* Carville High School, General, completed - 4 years (2002)
* Fort Leonard Wood, MO, One Station Unit Training (OSUT),
completed - 22 weeks (2003)

   e.  item 21 (Time Lost - Section 972, Title 10, USC):  13 October 2004 through 10 June 2005 - imprisonment; and

   f.  item 35 (Record of Assignments):
 
* OSUT, Fort Leonard Wood, MO, from 4 October 2002 through
17 March 2003, Duty MOS Code 54B1O (Chemical Operations Specialist)
* Headquarters and Headquarters Service Company, 224th Military Intelligence (MI) Battalion, Fort Stewart, GA, from 24 March 2003 through 12 October 2004, Duty MOS Code 54B1O

4.  Orders issued by Headquarters, 3rd Infantry Division, Fort Stewart, GA, on
15 October 2004, assigned the applicant to the U.S. Army Personnel Control Facility, Fort Knox, KY, with a reporting date of 15 October 2004.

5.  On 13 October 2004, the applicant pled guilty and was found guilty before a general court-martial of:

* failing to go at the times prescribed to his appointed place of duty
(5 specifications)
* wrongful use of marijuana
* wrongful possession of a certain amount of heroin
* stealing money, a value of $500.00 or less, the property of a Soldier
* wrongfully appropriating a key, a value of $500.00 or less, the property of the U.S. Army
* unlawfully entering the office of a first sergeant

6.  On 27 April 2005, the convening authority approved the following sentence:

* reduction to the pay grade of E-1
* a forfeiture of $795.60 pay for 10 months
* confinement for 10 months
* a bad conduct discharge

7.  A U.S. Army Court of Criminal Appeals, Memorandum Opinion, dated
8 August 2005, shows that on consideration of the entire record, the Court affirmed only so much of the sentence as provided for a bad conduct discharge, confinement for 10 months, forfeiture of $795.00 pay per month for 10 months, and reduction to pay grade E-1.  (The military judge had sentenced him to confinement for 21 months.)

8.  Headquarters, U.S. Army Armor Center, Fort Knox, KY, General Court-Martial Order Number 189, dated 9 December 2005, confirmed the applicant's court-martial sentence (as amended by the U.S. Army Court of Criminal Appeals) was affirmed.  The provisions of Article 71(c) having been complied with, the sentence of a bad conduct discharge was ordered duly executed.

9.  Headquarters, U.S. Army Armor Center, Fort Knox, KY, Orders 044-0181, dated 13 February 2006, reassigned the applicant from the Personnel Control Facility (PCF), Special Processing Company (SPEC PROC CO), Fort Knox, KY to the U.S. Army Transition Center, Fort Knox, KY 40121-5000, for discharge on 17 February 2006.


10.  The applicant's DD Form 214 shows he entered active duty this period on 
24 September 2002 and he was separated on 17 February 2006 with a bad conduct discharge.  It also shows in:

   a.  item 8a (Last Duty Assignment and Major Command):  "PCF SPEC PROC CO TC" (Training and Doctrine Command);
   
   b.  item 8b (Station Where Separated):  Fort Knox, KY  40121-5000;

   c.  item 9 (Command to Which Transferred):  "NA" (Not Applicable);

   d.  item 11 (Primary Specialty):  25B1O, Information Systems Operator - Analyst, 1 Year, 6 Months;

	e.  item 12 (Record of Service):

* block c (Net Active Service This Period):  "0002  years, 08 months,
26 days"
* block d  (Total Prior Active Service):  "0000  years, 00 months, 
00 days"
* block e  (Total Prior Inactive Service):  "0000  years, 00 months, 
00 days"
* block f (Foreign Service):  "0000  years, 00 months, 00 days"

	f.  item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized):

* National Defense Service Medal
* Army Service Ribbon

   g.  item 14 (Military Education):  "See Block 18//Nothing Follows;"

	h.  item 18 (Remarks):

* "DD Form 215 (Correction to DD Form 214) will be issued to provide missing information"
* "Period of Delayed Entry Program:  20020718-20020923"
* "Excess Leave (Creditable for All Purposes Except Pay and Allowances) - 252 Days:  20050611-20060217"

   i. item 18 does not show the applicant deployed with his unit to Kuwait/Iraq or the period of any such deployment; and

   j.  item 29 (Dates of Time Lost During This Period):  Under Title 10, USC, section 972 - 13 October 2004 through 10 June 2005.

11.  During the processing of this case, the Defense Finance and Accounting Service confirmed the applicant received Hostile Fire Pay/Imminent Danger Pay from 16 May 2003 through 26 September 2003 for Kuwait.

12.  A review of the applicant's Army Military Human Resource Record (AMHRR) maintained in the Interactive Personnel Electronic Records Management System (iPERMS) failed to reveal evidence of any additional active duty service, awards, military training, or foreign service.

13.  Army Regulation 600-8-22 (Military Awards) provides policy, criteria, and administrative instructions concerning military awards and decorations.

	a.  The Global War on Terrorism Expeditionary Medal (GWOTEM) is authorized for award to members of the Armed Forces of the United States who deployed abroad for service in Global War on Terrorism (GWOT) 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 50 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.  

		(1)  Service members must be assigned, attached, or mobilized to a unit participating in designated operations for 30 consecutive or 60 nonconsecutive days in the AOE.

		(2)  Initial award of the GWOTEM was limited to service members deployed abroad in support of Operation Enduring Freedom (OEF) and Operation Iraqi Freedom (OIF) in specific designated geographic AOE's, which included Kuwait and also Iraq between 19 March 2003 and 28 February 2005.
		
	b.  The Global War on Terrorism Service Medal (GWOTSM) is authorized for award to members of the Armed Forces of the United States who have participated in GWOT operations outside of the AOE designated for award of the GWOTEM.  All Soldiers on active duty on or after 11 September 2001 to a date to be determined, having served 30 consecutive or 60 nonconsecutive days are authorized the GWOTSM.

14.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, or release from active duty service or control of the Active Army and contains item-by-item instructions for completing the DD Form 214.  It shows for:
   a.  item 8a:  enter last unit of assignment and major command with the corresponding two character assignment code;

   b.  item 8b:  enter location where Soldier is transitioning, include state or country;

   c.  item 9:  enter the applicable location dependent on the Soldier's status on transition (if discharged, enter "NA" or "Not Applicable");

   d.  item 11:  enter the titles of all MOS served for at least one year and include for each MOS the number of years and months served (for time determination, 16 days or more count as a month; do not count basic and advanced individual training (AIT));

   e.  item 12:  use extreme care in completing this block since post-service benefits, final pay, retirement credit, etc. are based upon the information contained herein.

* block c:  enter the amount of service this period (subtract 12a from 12b).  (Lost time under Title 10, USC, section 972 and non-creditable time after expiration term of service, if any, will be deducted.)
* block d:  enter the total amount of prior active military service less lost time, if any.  If there was no prior active service, enter "00  00  00."
* block e:  enter the total amount of prior inactive service, less lost time, if any.  (DEP time that begins on or after 1 January 1985 is not creditable service for pay purposes and will not be entered.)
* block f:  enter the total amount of foreign service completed during the period covered in item 12, block c.

	f.  item 13:  list awards and decorations for all periods of service in the priority sequence specified in Army Regulation 600-8-22.  Each entry will be verified by the Soldier's records;

   g.  item 14 list formal in-service (full-time attendance) training courses successfully completed during the period of service covered by the 
DD Form 214, do not list training courses for combat skills; and

	h.  item 18:  for an active duty Soldier deployed to a foreign country during their continuous period of active service enter:  "SERVICE IN (NAME OF COUNTRY DEPLOYED) FROM (inclusive dates for example, YYYYMMDD-YYYYMMDD)."

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

   a.  Chapter 3, 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.
   
   b.  Chapter 3, paragraph 3-10, provides that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial after completion of the appellate review and after such affirmed sentence has been ordered duly executed.

16.  Title 10, U.S. Code, section 1552, the authority under which this Board acts, provides that the Board 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 applicant contends that his military education, primary specialty, foreign service, total active service, awards and decorations, last duty assignment and major command, and command to which transferred that are recorded on his
DD Form 214 should be corrected and that his discharge should be upgraded to an under honorable conditions (general) discharge.

2.  The evidence of record shows that the information recorded on the applicant's DD Form 214 concerning his last duty assignment and major command, station where separated, and command to which transferred are correct.  Therefore, there is no basis for correcting items 8a, 8b, or 9 of his DD Form 214.

3.  The applicant's DA Form 2-1 shows he completed 22 weeks of OSUT at Fort Leonard Wood, MO, that included AIT for MOS 54B on 17 March 2003. 

   a.  Item 11 of his DD Form 214 shows MOS 25B; however, there is no evidence he was awarded this MOS.
   
   b.  Item 14 does not show he completed the 14-week Chemical Operations Specialist (54B) course on 17 March 2003.

   
   c.  A calculation of the period he served in MOS 54B shows the following:
   
2004  10  13   date of confinement
         - 2003  03  17   date completed MOS training
         =      1  06  26   period of service in MOS

   d.  Therefore, it would be appropriate to correct item 11 and item 14 of his DD Form 214 to show his correct MOS and military education.

4.  There is no evidence of record, and the applicant provides no evidence, to show he had prior active service.

   a.  A calculation of his active duty service shows the following:

2004  10  13   date of confinement
         - 2002  09  24   date entered active duty
         =      2  00  19   net active duty (first period)


   2006  02  17   date of discharge
        -  2005  06  11   date after release from confinement (present for duty)
         =    	     08	06   days net active duty (second period)
         +                  1	   day inclusive
         =    00  08  07	   net active duty (second period)


    02  00 19   net active duty (first period)
       00  08 07   net active duty (second period)
		    02  08 26   Net Active Service This Period

   b.  Thus, based on the available evidence, there is no basis for correcting his net active service this period or total prior active service.

5.  The evidence of record shows the applicant served overseas in Kuwait/Iraq from 16 May 2003 through 26 September 2003.
   
   a.  A calculation of this period of overseas service shows the following:

	2003  09  26	date of redeployment
	- 2003  05  16	date of deployment to Kuwait/Iraq
	=     00  04  10
	+                   1	day inclusive
	=     00  04  11	total foreign service in Kuwait/Iraq
	b.  Item 12, block f, and item 18 of the applicant's DD Form 214 do not show this period of foreign service.  Therefore, it would be appropriate to correct his DD Form 214 to show he served in Kuwait/Iraq during the above cited period.

6.  Records show the applicant qualified for award of the GWOTEM for his service in support of the GWOT in Kuwait/Iraq.  Records also show the applicant qualified for award of the GWOTSM based on his service outside the AOE for the GWOTEM.  Therefore, it would be appropriate to correct his DD Form 214 to show award of the GWOTEM and GWOTSM.

7.  The applicant's trial by court-martial was warranted by the gravity of the offenses for which he was charged.  His conviction and discharge were effected in accordance with applicable laws and regulations and his rights were protected throughout the court-martial process.

8.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

9.  After a thorough and comprehensive review of the applicant's military service record, it is concluded that based on the seriousness of the offenses for which he was convicted, clemency would not be appropriate in this case.  In addition, the applicant's contentions regarding his psychological problems and use of alcohol were matters for consideration in his court-martial and/or the appeals process of his case.

10.  In view of the foregoing, there is no basis for granting the applicant's request concerning an upgrade of his discharge.

11.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans' benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, the granting of veterans' benefits is not within the purview of the ABCMR.  Any questions regarding eligibility for such benefits should be addressed to the VA or appropriate government agency.

12.  In view of the foregoing, it would be appropriate to correct the applicant's
DD Form 214, as recommended below.





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 correcting his DD Form 214, as follows:

   a.  item 11 by:

* deleting the entry:  "25B1O INFO SYS OPR-ANALYST - 1 YRS
6 MOS"
* adding the entry:  "54B1O CHEMICAL OPERATIONS SPECIALIST -
1 YR  7 MOS"

   b.  item 12f by:
   
* deleting the entry "0000  00  00"
* adding the entry "0000  04  11"
   
   c.  item 13 by adding the:

* Global War on Terrorism Expeditionary Medal
* Global War on Terrorism Service Medal

   d.  item 14 by:

* deleting the entry "SEE BLOCK 18//NOTHING FOLLOWS"
* adding the entry "CHEMICAL OPERATIONS SPECIALIST COURSE, 14 WEEKS, MARCH 2003"

   e.  item 18 by adding the entry:  "SERVICE IN KUWAIT/IRAQ FROM 20030516-20030926."

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 last duty assignment and major command, station where separated, command to which transferred, net active service this period, total prior active service, and upgrade of his 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)                                         AR20120021869



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ABCMR Record of Proceedings (cont)                                         AR20120021869



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