IN THE CASE OF: BOARD DATE: 28 July 2016 DOCKET NUMBER: AR20150002923 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ___x____ ____x___ ___x____ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 28 July 2016 DOCKET NUMBER: AR20150002923 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is 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 amending his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 23 May 2008 as follows. a. Item 11 (Primary Specialty) - delete the entry "11B1O INFANTRYMAN - 1 YRS 11 MOS" and enter "11C1O INDIRECT FIRE INFANTRYMAN - 1 YEAR 7 MONTHS." b. Add the Iraq Campaign Medal with 1 bronze service star. c. Item 18 (Remarks) - add the entry "SERVICE IN KUWAIT/IRAQ FROM 20060627 - 20061110." 2. The Board further determined 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 changing his discharge to a medical retirement, service in Iraq in excess of the above, the Combat Infantryman Badge, marksmanship badges, and the Combat Lifesavers Course. _____________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. IN THE CASE OF: BOARD DATE: 28 July 2016 DOCKET NUMBER: AR20150002923 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: a. His general discharge under honorable conditions be changed to a medical retirement. b. The following changes to his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 23 May 2008: (1) Item 11 (Primary Specialty) - change his military occupation specialty (MOS) to 11C1O (Indirect Fire Infantryman); (2) show service in Iraq from 1 July 2006 to 30 November 2006; (3) add the Combat Infantryman Badge and weapons qualification badges; and (4) add the Combat Lifesavers Course. 2. The applicant states: a. After the completion of his initial training he was assigned to Baumholder, Germany. After 2 weeks in Germany he was deployed to Kuwait in June of 2006 and 3 days later he was deployed to Baghdad, Iraq. Upon his arrival at Forward Operating Base (FOB) Falcon the base came under rocket and mortar fire. After a week with his new platoon he began combat operations with his unit. His platoon responded to a suicide bomber in a local market and a secondary device was detonated resulting in the death of his team leader. Another Soldier was gravely wounded. Multiple Iraqis were killed and wounded. While serving in Baghdad he undertook over 100 combat missions where he received enemy fire and his vehicle was struck with an improvised explosive device (IED) resulting in his back being injured, which still requires treatment. b. Shortly after redeploying to Germany he began physical therapy. Unaware of what was going on with him he began drinking himself to sleep every day. He began self-medicating, feeling sorry and helpless and shortly afterwards he felt scared and alone, knowing that no one could understand what it was he had just undertaken and the weight of bearing these memories was going to haunt him until the end of his existence. c. Four months after redeployment his unit came under new orders to deploy back to Iraq. Not yet being able to cope with the mental stresses of his last deployment, he became petrified of going back and facing the country which still haunts him to this day. He began looking for a way to exit the service. His non-commissioned officers and officers made it clear that nobody would receive a medical board separation. His desperation set in and he began losing hope in those who were in charge so he set off on a reckless mission which was fueled by desperation and fear. He had requested to be admitted to mental health and alcohol rehabilitation. Before deployment his request was denied on multiple occasions so the unit could maintain maximum strength. d. About 5 months before their deployment his unit was drug tested and he openly told his administers that he had consumed cannabis and purchased it from a fellow Soldier who had a reputation for drug usage. He was tested and although his testing samples came back negative he had already signed a written document saying he had consumed it. His discharge packet was started immediately. e. He was very confused and scared at the time. He attempted to work with U.S. Army Criminal Investigative Command (CID) to help them catch Soldiers doing wrong and thereby save his career in the Army. It was said that he had possession of a leafy green substance in his room, but he still tested negative for any illegal substances. He was then branded a so-called shit bag or an unfit for duty Soldier. After his rank was taken he was subject to scrutiny and overly extreme harsh punishment (while he was still suffering from post-traumatic stress disorder (PTSD)). Although he was never in trouble he became the "black sheep" of his platoon. If he was 2 minutes late to formation they would report him absent without leave (AWOL). This happened every time he was late. On 8 March 2008 he was separated from the Army and shortly thereafter he began treatment for depression and PTSD. f. He believes he was wrongly discharged from the military and that he was framed and stripped of all honors and awards from his deployment to Iraq and service to his country in Baumholder, Germany. His MOS on his DD Form 214 is incorrect. He is listed as 11B (Infantryman) but his job description was 11C. All medals and basic information were removed such as marksmanship badges to make an example out of him and to assert a certain level of shame upon him. COUNSEL'S EVIDENCE: Counsel submitted the applicant’s application and: * DD Form 214 * service personnel record (Enlisted Record Brief (ERB)) * Department of Veterans Affairs (VA) Rating Decision * statement from Mr. S____ * statement from Mr. P____ 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. On 19 January 2006, the applicant enlisted in the Regular Army for 3 years and 16 weeks. His ERB shows his MOS as 11B. 3. On 30 May 2006, he was assigned to the 2nd Battalion, 6th Infantry Regiment at Smith Barracks, Baumholder, Germany. 4. On 17 September 2007, the applicant departed AWOL and he returned on 2 October 2007. 5. On 4 October 2007, a CID report of investigation stated the applicant was the subject of an investigation for wrongful possession of a controlled substance and being AWOL. 6. On 18 October 2007, the applicant received non-judicial punishment (NJP) for: * being AWOL from on or about 17 September 2007 to on or about 1 October 2007 * wrongfully possessing one half gram of marijuana on or about 16 September 2007 7. On 24 January 2008, the applicant received a mental status evaluation, which included a PTSD Checklist – Military Version. a. The examiner found the applicant's: * behavior to be normal * alertness/orientation to be fully alert, oriented to person, place, and situation * mood to be depressed * thought process/content to be linear, logical and goal directed; no perceptual disturbance, no hallucinations, and no delusions * memory to have no impairment b. The examiner stated the applicant had the mental capacity to understand and participate in the proceedings, was mentally responsible, and met the retention requirements of chapter 3, Army Regulation (AR) 40-501 (Standards of Medical Fitness). c. The examiner stated the evaluation consisted of a clinical interview and he diagnosed the applicant with an adjustment disorder with disturbance of mood and conduct. d. The applicant was returned to duty with no change in duty status. He was psychiatrically cleared for any administrative action deemed appropriate by his command. e. It was the opinion of the examiner that the applicant’s problem would not respond to Command efforts at rehabilitation or to any treatment methods currently available in any military mental health facility. f. The examiner stated the applicant demonstrated many examples of thoughts, moods, and behaviors common to Soldiers with unresolved combat and operational stress problems. This did not relieve or diminish his ability to adhere to the right and make rational choices. 8. On 29 January 2008, the applicant tested positive for tetrahydrocannibinol (THC). On 8 February 2008, he made a statement in which he admitted he consumed marijuana in December 2007 and January 2008. 9. On 5 May 2008, the applicant’s commander notified him that action was being initiated to separate him under the provisions of Section III, paragraph 14-12c(2), chapter 14 of AR 635-200 (Active Duty Enlisted Administrative Separations), for abuse of illegal drugs. The reasons for the proposed action were the applicant having tested positive on two occasions from 22 November 2007 and 19 January 2008 for wrongfully using marijuana. In addition, on 18 October 2007, he received NJP for wrongfully possessing marijuana and being AWOL. The applicant’s behavior was unacceptable, and his misconduct would not be tolerated by the unit, brigade, division, or the Army. 10. His commander recommended the applicant receive a general under honorable conditions characterization of service. His commander advised him of his right to: * consult with counsel * submit statements in his own behalf * obtain copies of the documents that would be sent to the separation authority supporting the proposed separation action * request a hearing before an administrative board if he had 6 or more years of active and Reserve military service * waive any of these rights * withdraw any waiver of rights at any time prior to the date the discharge authority directed or approved his discharge * submit a conditional waiver of his right to have his case heard before an administrative separation board 11. On 6 May 2008, after being advised by his consulting counsel of the basis for the contemplated action to separate him, he submitted a statement acknowledging he had been advised of the basis for the contemplated separation action to separate him for abuse of illegal drugs under AR 635-200, chapter 14, paragraph 14-12c. He also acknowledged: a. He understood he had no right to consideration of his case by an administrative separation board if his service was characterized no less favorably than general or honorable. b. He understood that he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him. He further understood that, as a result of the issuance of a discharge under other than honorable conditions, he could be ineligible for many or all benefits as a veteran under both Federal and State laws. c. He indicated statements in his own behalf were submitted. However, these statements were not available for review. 12. On 7 May 2008, his commander recommended that he be separated from the U.S. Army prior to the expiration of his current term of service under the provisions of Section III, paragraph 14-12c(2) chapter 14 of AR 635-200. a. The specific reasons for the action were the applicant having tested positive on two occasions from 22 November 2007 and 19 January 2008 for wrongfully using marijuana. In addition, on 18 October 2007, he received NJP for wrongfully possessing marijuana and being AWOL. b. The applicant had been counseled and through subsequent behavior had demonstrated a lack of acceptance of rehabilitative measures. The applicant had demonstrated through repeated misconduct, after formal counseling, that other disposition was inappropriate. c. The commander recommended the applicant’s service be characterized as general under honorable conditions. 13. On 12 May 2008, the separation authority approved the recommendation for discharge, and directed that his service be characterized as general under honorable conditions. 14. On 23 May 2008, he was discharged under the provisions of paragraph 14-12c(2) of AR 635-200. He completed 2 years, 4 months, and 5 days of active service that was characterized as under honorable conditions (general). His service medical records were not available for review. Item 11 of his DD Form 214 shows he served in MOS 11B1O for 1 year and 11 months. Service in Iraq is not shown in Item 18 (Remarks). The DD Form 214 does not show he completed the Combat Lifesavers Course. There are no deployments shown in Item 18 (Remarks). The DD Form 214 shows he was awarded or is authorized the: * Meritorious Unit Commendation (Army) * National Defense Service Medal * Global War on Terrorism Service Medal * Army Service Ribbon 15. The applicant’s ERB, dated 14 May 2008, reflects the following information: a. Section 1 – Assignment Information, OS (overseas)/Deployment Combat Duty does not show any combat tours completed by the applicant. His MOS is shown as 11B. b. Section VI – Military Education does not show any military courses completed by the applicant. c. Section VIII – Awards and Decorations shows the * Meritorious Unit Commendation * National Defense Service Medal d. Section IX – Assignment Information shows he was assigned from: * 30 May 2006 to 2nd Battalion, 6th Infantry Rear Detachment at Smith Barracks, Germany in duty MOS (DMOS) 11C1O * 26 June 2006 to Headquarters and Headquarters Company (HHC), 2nd Battalion, 6th Infantry at Smith Barracks in Germany in DMOS 11C1O * 7 January 2008 to 2nd Battalion, 6th Infantry, Rear Detachment in Baumholder, Germany in DMOS 11B1O * 9 April 2008 to 2nd Battalion, 6th Infantry Rear Detachment at Smith Barracks in Germany in DMOS 11B1O 16. The applicant provided VA Rating Decision, dated 16 November 2012, based on the applicant's claim for compensation filed 27 August 2010. a. He was granted service connection for PTSD with a 50 percent (%) evaluation from 27 August 2010. b. The 50% evaluation was granted using the limited available evidence of record from the VA Medical Center in San Antonio to include a Post-Deployment Assessment from 2006, diagnosis of PTSD in 2010, and the contract examination from Dr. B____’s office. 17. The applicant provided a statement, 9 December 2014, from Mr. S____. Mr. S____ stated he served in combat with the applicant in Iraq while assigned to HHC, 2nd Battalion, 6th Infantry out of Baumholder, Germany. They were located at FOB Falcon in Baghdad where they participated in well over 100 combat missions. They were in the same vehicle that was struck by an IED after finding a cache of explosives. They were present at the FOB when an insurgent mortar round hit the ammo dump. After returning to Baumholder following the completion of their deployment Mr. S____ left Germany in 2007 and the applicant remained in Germany. 18. The applicant provided a statement, dated 10 December 2014, from Mr. P____, a former infantry captain. Mr. P____ stated the applicant served as a driver and dismounted rifleman in his platoon, Mortar Platoon, HHC, Task Force 2-6, while deployed to FOB Falcon in Baghdad, Iraq from July of 2006 to November of 2006. 19. The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge. On 16 September 2015, the ADRB reviewed and denied the applicant's request for an upgrade. The ADRB determined that the applicant's discharge was proper and equitable and his service was properly characterized as under honorable conditions (general). 20. On 8 July 2016, the Office of the Surgeon General (OTSG) provided an advisory opinion in this case. OTSG stated that at the time of his separation, the applicant reported symptoms consistent with PTSD. Although he was not deemed to fall below retention standards, it is more likely than not that his symptoms were a mitigating factor in the misconduct that resulted in his separation. 21. On 8 July 2016, the applicant was provided a copy of the advisory opinion for any comments he may have on the advisory opinion. The applicant has not provided any comments or rebuttal. 22. On 25 July 2016, an email was received from the Defense Finance and Accounting Service (DFAS) stating the applicant’s Military Master Pay Account (MMPA) shows he received hostile fire/imminent danger pay (HF/IDP) and combat zone tax exclusion (CZTE) from 27 June 2006 – 10 November 2006 for Kuwait. REFERENCES: 1. Army Regulation 600-8-22 (Military Awards) prescribes Army policy, criteria, and administrative instructions concerning individual and unit military awards. a. As amended by Military Personnel Message 08-190, the Combat Infantryman Badge may be awarded to an infantryman satisfactorily performing infantry duties, assigned to an infantry unit during such time as the unit is engaged in active ground combat, and actively participating in such ground combat. Specific requirements state, in effect, that an Army Soldier must have an infantry or special forces specialty/MOS and must have satisfactorily performed duty while assigned or attached as a member of an infantry, ranger, or special forces unit of brigade, regimental, or smaller size during any period such unit was engaged in active ground combat. A Soldier must be personally present and under hostile fire while serving in an assigned infantry or Special Forces primary duty, in a unit actively engaged in ground combat with the enemy, to close with and destroy the enemy with direct fires. IEDs, vehicle-borne IEDs (VBIEDS), and the like are direct fire weapons. While no fixed, qualifying distance from an explosion of these devices can be established, commanders should consider the entirety of the combat situation when considering award of the Combat Infantryman Badge. b. Individuals authorized the Iraq Campaign Medal must have served in direct support of Operation IRAQI FREEDOM (OIF). The area of eligibility encompasses all land area of the country of Iraq, and 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 Iraq Campaign Medal period of eligibility is on or after 19 March 2003 to a future date to be determined by the Secretary of Defense or the cessation of OIF. To qualify for award of this campaign medal, service members must have been assigned or attached to or mobilized with units operating in these areas of eligibility for 30 consecutive days or for 60 non-consecutive days 2. AR 635-5 (Separation Documents), in effect at the time, established the standardized policy for preparing and distributing the DD Form 214. The regulation directed: a. The entry for Item 11 was taken from the ERB/ORB. The entry included the titles of all MOS served for at least 1 year and included for each MOS the number of years and months served. For time determination, 16 days or more counted as a month. b. When an active duty Soldier was deployed with his unit during the period covered by the DD Form 214, the entry "SERVICE IN (name of country) FROM (inclusive dates in YYYY/MM/DD format) was to be made in item 18. 3. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System and sets forth policies, responsibility, and procedures that apply in determining whether a member is unfit because of physical disability to perform the duties of his office, grade, rank, or rating. a. The mere presence of an impairment does not, in of itself, justify a finding of unfitness because of physical disability. b. The medical treatment facility commander with the primary care responsibility evaluates those referred to him and, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refers the member to a medical evaluation board (MEB). Those members who do not meet medical retention standards are referred to a physical evaluation board (PEB) for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition. 4. AR 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provided that an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be clearly inappropriate. b. Chapter 14 dealt with separations for various types of misconduct. Paragraph 14-12c(2) provided for the separation of a Soldier by reason of the commission of a serious offense, which included drug abuse. The issuance of a discharge under other than honorable conditions was normally considered appropriate for separations under the provisions of chapter 14. 5. Title 38, U.S. Code, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. The VA, however, is not required by law to determine medical unfitness for further military service. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency. The VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings. DISCUSSION: 1. The applicant was diagnosed with an adjustment disorder with disturbance of mood and conduct on 24 January 2008. The examiner determined he met retention standards for this condition. 2. He filed a claim for disability due to PTSD with the VA on 27 August 2010, over 2 years after his discharge. The VA granted service connection for PTSD effective 27 August 2010 and assigned a disability rating of 50%. 3. The advisory opinion from OTSG stated the applicant reported symptoms consistent with PTSD. Although he was not deemed to fall below retention standards, it is more likely than not that his symptoms were a mitigating factor in the misconduct that resulted in his separation. 4. According to AR 635-200, the abuse of illegal drugs is serious misconduct. He was properly and equitably discharged in accordance with regulations in effect at the time. It is clear the separation authority considered his medical condition and his service prior to his misconduct in that he directed a general discharge under honorable conditions be issued where a discharge under other than honorable conditions was normally considered appropriate for drug abuse. The available evidence contains no indication of procedural or other errors that would have jeopardized his rights. 5. The applicant’s ERB shows his primary MOS as 11B. However, his ERB shows he served in MOS (DMOS) 11B1O for 3 months and 16 days. The ERB shows his DMOS was 11C1O from 30 May 2006 – 6 January 2008 a period of 1 year, 7 months, and 7 days. According to AR 635-5, the applicant served in 11C1O for 1 year and 7 months. 6. The applicant’s ERB does not show he completed any combat tours in Iraq and there is no evidence of him receiving any campaign awards for service in Iraq. There are no orders in his OMPF awarding him the Combat Infantryman Badge and his ERB does not show this award. There is no official documentation showing he was personally present and under hostile fire while serving with his unit. 7. The applicant’s ERB does not show any marksmanship badges and there are no orders in his OMPF showing he was awarded any badges. 8. The email from DFAS showing he received HF/IDP and CZTE from 27 June 2006 - 10 November 2006 and the statements from fellow Soldiers, including his former platoon leader, are sufficient evidence to show he served in Kuwait/Iraq from 27 June 2006 - 10 November 2006. 9. He is authorized the Iraq Campaign Medal with one bronze service star. 10. The applicant’s ERB does not show he completed the Combat Lifesavers Course. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150002923 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150002923 12 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2