IN THE CASE OF:	

		BOARD DATE:	  6 March 2015

		DOCKET NUMBER:  AR20140012732 


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 his under other than honorable conditions discharge be upgraded to an honorable discharge.  He further requests correction of his 
DD Form 214 (Certificate of Release or Discharge from Active Duty) to show:

* he served in military occupational specialty (MOS) 13B (Cannon Crewmember) for 6 years, 1 month, and 15 days from 18 April 1991 to     1 June 1997
* the Army Commendation Medal (ARCOM) 
* the Southwest Asia Service Medal (SWASM) with one bronze service star 

2.  The applicant states:

	a.  His discharge was improper because it was based on one incident which happened in a new unit.

	b.  He was married to another service member but that was not taken into consideration.

	c.  Information on post traumatic stress disorder (PTSD) and counseling was overlooked and never documented.

	d.  He served for over 6 years and sacrificed many nights at home with his wife in order to volunteer for overseas deployments.

	e.  Based on his deployment to Kuwait, he was awarded the SWASM with one bronze service star but the award was not recorded on his DD Form 214.

	f.  He volunteered for a deployment to Egypt just after his wife had returned from a 9-month deployment to Bosnia.

	g.  He was also awarded the ARCOM but the award was not recorded on his DD Form 214.

	h.  On nearly every field training exercise or deployment, he received either an Army Achievement Medal (AAM) or a Certificate of Achievement.  He constantly stood above his peers.

3.  The applicant provides a copy of his DD Form 214, copies of his ARCOM and AAM certificates, and an extract of his Department of Veterans Affairs (VA) Rating Decision.

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 18 April 1991.

3.  Orders Number 150-403, issued by Headquarters, U.S. Army Artillery Center, Fort Sill, OK on 30 May 1991, awarded him MOS 13B effective 1 August 1991.

4.  Item 5 (Oversea Service) of his DA Form 2-1 (Personnel Qualification Record – Part II) shows he served in Korea from 16 August 1991 to 18 August 1992.

5.  Permanent Orders Number 85-28, issued by Headquarters, U.S. Army Artillery Center, Fort Sill, OK on 23 May 1994, awarded him the Driver and Mechanic Badge with Driver-W Bar.

6.  He reenlisted in the Regular Army for a period of 4 years on 19 August 1994.

7.  Permanent Orders Number 84-1, issued by the 30th Field Artillery Regiment, Fort Sill, OK on 7 November 1994, awarded him the ARCOM for service during the period 12 September 1992 to 1 December 1994.

8.  The Defense Manpower Data Center (DMDC) compiled the Desert Shield/Storm Data Base.  This data base credits him with service in SWA during the period 1 November to 31 December 1995.

9.  Permanent Orders Number 175-1675, issued by the 4th Personnel Services Battalion, Fort Carson, CO on 24 June 1997, awarded him the Army Good Conduct Medal (2nd Award) for the period 18 April 1994 to 17 April 1997.

10.  Orders Number 169-560, issued by Headquarters, Fort Leonard Wood, MO on 18 June 1997, awarded him MOS 62J (General Construction Equipment Operator) as his primary MOS and MOS 13B as his secondary MOS, effective 
18 July 1997.

11.  His record does not include a DD Form 458 (Charge Sheet); however, his record shows that on 4 February 1998, he consulted with legal counsel and voluntarily requested discharge for the good of the service in lieu of trial by court-martial, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, due to charges preferred against him under the Uniform Code of Military Justice (UCMJ) that authorized the imposition of a bad conduct or dishonorable discharge.

12.  He acknowledged he understood the elements of the offenses charged and that he was guilty of at least one of the charges against him or of lesser-included offenses which also authorized the imposition of a bad conduct or dishonorable discharged.  He was advised of:

* the nature of his rights under the UCMJ
* the elements of the offense with which he was charged
* the facts which must be established by competent evidence beyond reasonable doubt to sustain a finding of guilty
* the maximum permissible punishment if found guilty

13.  He also acknowledged he could be issued a discharge under other than honorable conditions and that he could be ineligible for many or all benefits administered by the VA, that he could be deprived of many or all Army benefits, and that he could be ineligible for many or all benefits as a veteran under both Federal and State laws.  He further acknowledged he could expect to encounter substantial prejudice in civilian life by reason of a under other than honorable conditions discharge.

14  On 5 February 1998, the separation authority approved his request for discharge and directed his reduction to the lowest enlisted grade and the characterization of his service as under other than honorable conditions.  On    11 February 1998, he was discharged accordingly.  His DD Form 214 shows in:

	a.  block 11 (Primary Specialty), the entry "62J1O  00  Gen Const Eq Op --6yrs-6 mos";

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

* AAM (3rd Award)
* Army Good Conduct Medal
* National Defense Service Medal
* Army Service Ribbon
* Overseas Service Ribbon
* Expert Marksmanship Qualification Badge with Rifle Bar
* Expert Marksmanship Qualification Badge with Grenade Bar
* Driver and Mechanic Badge with Mechanic Bar

	c.  block 18 (Remarks), no entry indicating his period of honorable service and no entry indicating his service in SWA.

15.  There is no evidence in his available record that indicates he was suffering from PTSD during his active duty service or that PTSD was the proximate cause of the misconduct that led to his discharge.

16.  He provides an extract of his VA Rating Decision that indicates he was granted service-connected disability compensation for PTSD, effective 20 May 2009.

17.  The Army Discharge Review Board denied his request for an upgrade of his discharge on 15 November 2006.

18.  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 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.

19.  Army Regulation 600-8-22 (Military Awards) states 

	a.  The SWASM is awarded to members of the Armed Forces of the United States serving in SWA and contiguous waters or airspace there over, on or after 2 August 1990 to 30 November 1995.  A bronze service star is authorized for wear with this medal for participation in each credited campaign.  Approved designated campaigns are:

* Defense of Saudi Arabia (2 August 1990 to 16 January 1991)
* Liberation and Defense of Kuwait (17 January to 11 April 1991) 
* Cease-Fire Campaign (12 April 1991 to 30 November 1995)

	b.  The Korea Defense Service Medal (KDSM) is authorized for award to members of the Armed Forces of the United States who have served on active duty in support of the defense of the Republic of Korea.  The period of eligibility is 28 July 1954 to a date to be determined by the Secretary of Defense.

20.  Army Regulation 635-85 (Separation Processing and Documents), currently in effect, prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It established standardized policy for the preparation of the DD Form 214. It states for:

	a.  Block 11, enter the titles of all MOS's or areas of concentration served for at least 1 year and include the number of years and months served.  For time determination, 16 days or more count as a month.  Do not count basic training and advanced individual training. As an exception, if the primary MOS is held for less than 1 year enter the primary specialty and the number of months the MOS and/or AOC was held. Secondary, additional MOS and/or AOC will not be listed if held for less than 1 year.

	a.  Block 13, list awards and decorations for all periods of service in the priority sequence specified in Army Regulation 600-8-22.

	b.  Block 18, for enlisted Soldiers with more than one enlistment period during the time covered by this DD Form 214, "IMMEDIATE REENLISTMENTS THIS PERIOD" (specify dates) will be entered.  However, for Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except honorable, then "Continuous Honorable Active Service From (first day of service for which DD Form 214 was not issued) until (date before commencement of current enlistment)" will be entered.  Then, the specific periods of reenlistments as prescribed above.

	c.  Block 18, 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's request for an upgrade of his under other than honorable conditions discharge and other administrative corrections to his DD Form 214 was carefully considered.

2.  Orders show he was awarded MOS 13B effective 1 August 1991.  He held that MOS for 6 years, 6 months, and 11 days until he was discharged on           11 February 1998.  Therefore, block 11 of his DD Form 214 should be corrected to reflect his service in MOS 13B.

3.  Orders show he was awarded Primary MOS 62J effective 18 July 1997.  He held that MOS for 7 months and 1 day until he was discharged on 11 February 1998.  Block 11 of his DD Form 214 incorrectly shows he held MOS 62J for 6 years and 6 months.  Although the governing regulation mandates that only MOSs served for at least 1 year will be recorded on the DD Form 214 unless the primary MOS is held for less than 1 year.  He was serving in primary MOS 62J at the time of his separation from active duty.  Therefore, block 11 of his DD Form 214 should be further corrected to reflect the correct number of months he served in MOS 62J.

4.  The evidence confirms he was awarded the ARCOM for service during the period 12 September 1992 to 1 December 1994.  Therefore, this award should be added to his DD Form 214.

5.  He served in SWA from 1 November to 31 December 1995.  Based on this period of foreign service, he is authorized the SWASM with one bronze service star and correction of his DD Form 214 to show this award.  Additionally, block 18 of his DD Form 214 should be amended by adding the dates of his deployment to SWA.

6.  Permanent orders awarded him the Army Good Conduct Medal (2nd Award).  Therefore, this award should be added to his DD Form 214.

7.  He served in Korea from 16 August 1991 to 18 August 1992.  Based on this period of foreign service, he is authorized the KDSM and correction of his 
DD Form 214 to show this award.

8.  Permanent orders awarded him the Driver and Mechanic Badge with Driver-W Bar.  This badge should also be added to his DD Form 214.

9.  He served a period of honorable service from 18 April 1991 to 18 August 1994 and he reenlisted on 19 August 1994.  In accordance with the governing regulation at the time, he was not issued a DD Form 214 for his first period of honorable service.  However, the required comment to block 18 of his 
DD Form 214 regarding his period of honorable service was omitted.  Therefore, his DD Form 214 should be corrected to reflect his period of honorable service.

10.  His record is void of a DD Form 458 indicating the nature of the court-martial charges preferred against him.  However, the evidence shows that on 4 February 1998, he consulted with legal counsel and he voluntarily requested discharge from the Army in lieu of trial by court-martial.  By requesting discharge, he admitted he was guilty of the court-martial charges or a lesser included offense.

11.  The evidence of record confirms his voluntary request for discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial was administratively correct and in accordance with applicable laws and regulations.  There is no indication the request was made under coercion or duress.

12.  Based on the foregoing, and in view of the fact that he voluntarily requested to be discharged in order to avoid a trial by court-martial that could have resulted in a punitive discharge, it is presumed his overall record of service did not support the issuance of an honorable or general discharge by the separation authority at the time and it does not support an upgrade of his discharge now.

13.  The applicant stated that information related to PTSD was overlooked or never documented; however, there is no evidence in his available military records indicating he was suffering from PTSD.  In addition, it is not clear how PTSD contributed to the unknown misconduct that led to his separation.  Therefore, the fact that he was granted service-connected compensation for PTSD over 10 years after his discharge does not demonstrate error or injustice in his separation processing or the characterization of service he received.

14.  The applicant failed to show that his separation processing and/or the character of service he received were in error or unjust.  As a result, there is no basis for granting him an honorable or general characterization of service.

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.  amending his DD Form 214 by deleting the current entry in block 11 and adding the entries "62J1O General Construction Equipment Operator - 7 months and 1 day" and "13B1O Cannon Crewmember - 6 years and 6 months";

	b.  amending his DD Form 214 by deleting from block 13 the Army Good Conduct Medal and adding the:

* Army Commendation Medal
* Southwest Asia Service Medal with one bronze service star
* Army Good Conduct Medal (2nd Award)
* Korea Defense Service Medal

* Driver and Mechanic Badge with Driver-W Bar

	c.  amending his DD Form 214 by adding to block 18 the entries:

* "CONTINUOUS HONORABLE ACTIVE SERVICE FROM 19910418 – 19940818" 
* "SERVICE IN SOUTHWEST ASIA FROM 19951101 – 19951231"

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 under other that honorable conditions discharge to an honorable 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)                                         AR20140012732



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ABCMR Record of Proceedings (cont)                                         AR20140012732



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