IN THE CASE OF:	  

		BOARD DATE:	    30 July 2013

		DOCKET NUMBER:  AR20120022758 


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 the following:

* correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show in:

* Item 12f (Foreign Service) his total amount of foreign service
* Item 13 (Decorations, Medal, Badges, Citations, and Campaigns Ribbons Awarded or Authorized) all awards he is entitled to

* an upgrade of his under other than honorable conditions discharge to a general discharge

2.  The applicant states his foreign service and decorations/awards are not reflected on his DD Form 214.  He requests an upgrade of his discharge to a general discharge.  He suffers from post-traumatic stress disorder (PTSD) due to his service in Iraq.  He was exhibiting symptoms after his tour while stationed at Fort Hood, TX, and was never seen by any mental health services prior to his discharge.  He was unaware he was suffering from PTSD until 2009.

3.  The applicant provides no additional evidence.

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 Regular Army on 5 March 2003.  He completed training and was awarded military occupational specialty 19K (Armor Crewman).

3.  On 6 April 2005, the applicant's company commander notified the applicant that he was initiating action to separate him under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c, for a commission of a serious offense with issuance of an under other than honorable conditions discharge.  He advised the applicant that he was recommending his separation because he wrongfully used marijuana and cocaine on divers occasions and was drunk on duty.  Also, the applicant had been absent without leave (AWOL) on divers occasions, resulting in nonjudicial punishment.

4.  On 28 April 2005, after consulting with counsel, the applicant acknowledged receipt of the contemplated action to separate him under the provisions of Army Regulation 635-200, paragraph 14-12c, and the rights available to him.  He also acknowledged that he might receive an under other than honorable conditions discharge and the results of the issuance of such a discharge.  He waived his rights and elected not to submit a statement in his own behalf.

5.  On 28 April 2005, the applicant's battalion and brigade commanders recommended approval of the applicant's discharge with an under other than honorable conditions discharge.

6.  On 28 April 2005, the separation authority approved the applicant's discharge with the issuance of an under other than honorable conditions discharge.

7.  On 23 May 2005, he was discharged in pay grade E-1 under the provisions of Army Regulation 635-200, paragraph 14-12c(2), for misconduct.  His service was characterized as under other than honorable conditions.  He completed 2 years, 2 months, and 6 days of net active service with time lost from 6 to 7 July 2004 and from 17 to 27 December 2004.  

8.  His DD Form 214 shows in:

* Item 12f - zero credit
* Item 13 - the Global War on Terrorism Service Medal, National Defense Service Medal, and Army Service Ribbon
* Item 18 (Remarks) of this form does not show he served in an imminent danger pay area

9.  There is no evidence he was diagnosed with PTSD or referred to a medical evaluation board or a physical evaluation board for consideration of this condition or any medical condition(s) during his period of active service.

10.  A staff member of the Defense Finance and Accounting Service, Indianapolis, IN, verified the applicant received hostile fire/imminent danger pay and combat zone tax exclusion for service in Kuwait from 23 August 2003 through 20 April 2004, a period of 7 months and 29 days.  

11.  On 14 December 2010, the Army Discharge Review Board denied his request for an upgrade of his discharge.

12.  Army Regulation 635-5 (Personnel Separations - Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  It states that for:

* Item 12, enter the total amount of foreign service completed during the period covered by the DD Form 214
* Item 13, enter all awards and decorations for all periods of service
* Item 18, for an active duty Soldier deployed with his/her unit during their continuous period of active service, enter "Service IN (Name of Country Deployed) FROM (inclusive dates, YYYYMMDD - YYYYMMDD)"

13.  Army Regulation 600-8-22 (Military Awards) states the Global War on Terrorism Expeditionary Medal is authorized for award to members of the Armed Forces of the United States deployed abroad for service in the Global War on Terrorism Operations on or after 11 September 2001 to a date to be determined. Service members must be assigned, attached, or mobilized to a unit participating in designated operations for 30 consecutive days or 60 nonconsecutive days in the area of eligibility.


14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

	a.  Paragraph 14-12c provides for the separation of Soldiers for the commission of a serious offense (military or civil).  The issuance of a discharge under other than honorable conditions is normally considered appropriate.  

	b.  Paragraph 3-7a states 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 will be clearly inappropriate.

   c.  Paragraph 3-7b states 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.  

15.  Army Regulation 40-501 (Standards of Medical Fitness) governs the medical fitness standards for retention and separation, including retirement.  Paragraph 3-33 states that anxiety, somatoform, or dissociative disorders are causes for referral to an medical evaluation board for persistence or recurrence of symptoms sufficient to require extended or recurrent hospitalization; or persistence or recurrence of symptoms necessitating limitations of duty or duty in protected environment; or persistence or recurrence of symptoms resulting in interference with effective military performance.  

DISCUSSION AND CONCLUSIONS:

1.  With regard to his foreign service credit and all awards he is entitled to, the evidence of record shows the applicant served in Kuwait from 23 August 2003 through 20 April 2004.  There is insufficient evidence to show he served in Iraq.  Therefore, Item 12f of his DD Form 214 should be corrected to show a credit of 

7 months and 29 days of foreign service.  Item 18 of his DD Form 214 should also be corrected to show the entry "SERVICE IN KUWAIT FROM 20030823-20040420." 

2.  Records confirm he served during a qualifying period of service for award of the Global War on Terrorism Expeditionary Medal.  Therefore, his DD Form 214 should be corrected to show this award.

3.  There is no evidence of record and he provided none to show his entitlement to any other awards for his periods of active duty other than the one currently listed on his DD Form 214 with the addition of the Global War on Terrorism Expeditionary Medal.

4.  With regard to an upgrade of his discharge, the evidence of records shows the applicant's company commander initiated separation against him for misconduct as a result of wrongfully using marijuana and cocaine and being drunk on duty and being AWOL.  The company commander recommended his separation under the provisions of Army Regulation 635-200, paragraph 14-12c, with an under other than honorable conditions discharge.

5.  He was discharged accordingly on 23 May 2005.  The evidence shows his misconduct diminished the quality of his overall service below that meriting a fully honorable or a general discharge.

6.  He provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of his discharge.  The evidence shows his separation action was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights.

7.  Absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  He was properly separated for misconduct – commission of a serious offense.

8.  With regards to an upgrade based on PTSD, there is no documented history of chronic PTSD during in his period of service which would have been assessed and disposed of through medical channels nor prevented the completion of his term of enlistment.

9.  In view of the foregoing, his records should be corrected 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:

* deleting from Item 12f of the applicant's DD Form 214 the entry "0000-00-00" and replacing it with the entry "0000-07-29"  
* adding to Item 18 of his DD Form 214 the entry, "SERVICE IN KUWAIT FROM 20030823-200400420"
* adding to his DD Form 214 the Global War on Terrorism Expeditionary Medal

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 the addition of any other awards for his period of active duty and an upgrade of 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)                                         AR20120022758





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ABCMR Record of Proceedings (cont)                                         AR20120022758



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