BOARD DATE: 8 December 2015 DOCKET NUMBER: AR20150003181 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 reconsideration of his previous requests for: * an upgrade of his general, under honorable conditions discharge * the removal of three DA Forms 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)) from his official military personnel file (OMPF) 2. As a new request, he requests correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show: * his rank/grade as specialist (SPC)/E-4 * Meritorious Unit Award, Valorous Unit Award (2nd Award), and Army Commendation Medal (3rd Award) with "V" Device 3. The applicant also requests a personal hearing. 4. The applicant states his SPC rank should be restored because he never should have received the Article 15s for not knowing the whole process. He had to do his punishment and then go through the loss of rank and respect. He should receive the Meritorious Unit Award for his deployment in 2006 and the Valorous Unit Award (2nd Award) for his deployment in 2007 to 2008. 5. The applicant provides: * his DD Form 214 * two DD Forms 215 (Correction to DD Form 214) * Enlisted Record Brief (ERB) * 12 statements of support, dated between 13 February 2012 and 2 September 2015 * 16 letters, dated between 23 July 2008 and 8 August 2015 * three DA Forms 2823 (Sworn Statement), dated between 1 and 11 May 2008 * a six-page IED report, dated 30 April 2008 * 39 pages of medical records, dated between 29 April 2008 and 7 July 2015 * 16 letters, dated between 23 July 2008 and 8 August 2015 * two DA Form 638 (Recommendation for Award) * seven orders, dated between 14 July 2003 and 2 December 2011 * 42 pages of transcripts and training/award certificates * seven birth certificates CONSIDERATION OF EVIDENCE: 1. With respect to his request for an upgrade of his discharge: a. The applicant originally applied to this Board on 26 May 2010 for an upgrade of his discharge; however, his request was denied by the Board (Army Board of Correction for Military Records (ABCMR) Docket Number AR20100015727, dated 18 January 2011). He requested reconsideration of his earlier request for an upgrade of his discharge on 27 November 2012. However, his request for reconsideration was also denied by the Board (ABCMR Docket Number AR20120022166, dated 3 September 2013). b. Army Regulation 15-185 sets forth procedures for processing requests for correction of military records and allows an applicant to request reconsideration of an earlier ABCMR decision if the request is received within 1 year of the ABCMR's original decision and it has not previously been reconsidered. c. Since the applicant does not qualify for a second reconsideration of his request for discharge upgrade and since his request for a second reconsideration was neither received within 1 year nor contains any new evidence, the portion of his request that pertains to the upgrade of his discharge will not be discussed further in this Record of Proceedings (ROP). 2. With respect to his request for the removal of three DA Forms 2627 from his service records: a. The applicant originally applied to this Board on 27 November 2012 for the removal of said Article 15s from his service record. However, his request was denied by the Board (ABCMR Docket Number AR20120022166, dated 3 September 2013). b. Army Regulation 15-185 (ABCMR) sets forth procedures for processing requests for correction of military records and allows an applicant to request reconsideration of an earlier ABCMR decision if the request is received within 1 year of the ABCMR's original decision and it has not previously been reconsidered. c. The applicant does not qualify for reconsideration of this issue because his request was neither received within 1 year of the Board's original decision nor contains any new evidence. Therefore, this portion of his request that pertains to the removal of the Article 15s will also not be discussed further in this ROP. 3. The applicant enlisted in the Regular Army on 12 February 2003. On 13 August 2003, he was assigned to Headquarters and Headquarters Detachment (HHD), 2nd Battalion, 10th Special Forces Group (SFG), Fort Carson, CO. In 2004, he was promoted to SPC/E-4. He served in Iraq with his assigned unit from 11 November 2004 to 1 April 2005. 4. On 9 January 2006, he was assigned to Headquarters and Headquarters Company (HHC) (Rear), 3rd Brigade Combat Team (BCT), 4th Infantry Division (ID), Fort Carson. He served in Iraq with HHC, 3rd BCT, 4th ID, from 22 May to 11 November 2006. 5. In January 2007, he was assigned to HHC, 64th Brigade Support Battalion (BSB), 3rd BCT, Fort Carson. On 27 February 2007, he received nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ, for wrongfully wearing an unauthorized award, dereliction of duty, and making a false statement. Part of the punishment imposed was reduction to private first class (PFC)/E-3 that was suspended, to be automatically remitted if not vacated before 28 March 2007. The DA Form 2627 shows he did not appeal the NJP. 6. A DA Form 2627-2 (Record of Supplemental Action Under Article15, UCMJ), dated 6 March 2007, shows the suspension of his reduction was vacated due to the applicant failing to go to his appointed place of duty at the prescribed time on 3 and 4 March 2007. He was reduced to PFC effective 27 February 2007. 7. He was subsequently promoted to SPC. He deployed to Iraq with his assigned unit on 2 December 2007. On 1 March 2008, he was promoted to sergeant (SGT)/E-5. 8. On 22 April 2008, he received NJP under the provisions of Article 15, UCMJ, for leaving his sentinel post at a forward operating base in Iraq with the intent to abandon the post on 13 April 2008 and for leaving his sentinel post without being properly relieved on 12 April 2008. Part of the punishment imposed was reduction to SPC that was suspended, to be automatically remitted if not vacated before 28 October 2008. The DA Form 2627 shows the imposing commander directed the Article 15 filed in the restricted folder of his OMPF. The applicant did not appeal the NJP. 9. The applicant provides a DA Form 638, undated, wherein it shows he was recommended for award of the Army Commendation Medal with "V" Device for exceptional valorous meritorious achievement on 29 April 2008 by his platoon sergeant, the battalion commander recommended approval of the award on 15 June 2008, and the award was approved by the brigade commander. The date the award was approved is blank, the form shows his rank as SGT, and the DA Form 638 is void of an order number showing he was awarded this award. 10. A DA Form 2627-2, dated 15 July 2008, shows the suspension of his reduction was vacated due to the applicant failing to go to his appointed place of duty at the prescribed time on 13 July 2008. He was reduced to SPC effective 15 July 2008. 11. The applicant provides a DA Form 638, dated 28 July 2008, wherein it shows he was recommended for award of the Army Commendation Medal (2nd Award) for the period 2 December 2007 to 5 March 2009 by his first sergeant on 15 July 2008 and the award was approved on 28 July 2008 by the brigade commander. This form shows his rank as SPC; however, the DA Form 638 is void of an order number showing he was awarded this award. 12. On 14 August 2008, he received NJP under the provisions of Article 15, UCMJ, for wrongfully, with the intent to defraud, altering another Soldier’s DA Form 2823 [in reference to injuries he incurred in an IED blast]. Part of the punishment imposed was reduction to PFC that was suspended, to be automatically remitted if not vacated before 10 January 2009. 13. A DA Form 4187 (Personnel Action), dated 23 August 2008, shows the suspension of his reduction was vacated and he was reduced to PFC effective 14 August 2008. 14. On 30 August 2008, a DA Form 2126 (Bar to Reenlistment Certificate) was imposed against him. 15. On 7 October 2008, the applicant’s immediate commander notified him of his intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 14, by reason of misconduct, and stated he was recommending he receive a general discharge. The commander stated he was initiating the separation action for his repeated failures to report at the prescribed time, dereliction of duty, forgery, leaving his place of duty while posted as a sentinel, twice disobeying a lawful order, making a false statement with the intent to deceive, and wrongfully wearing an award. 16. The separation authority subsequently approved the applicant’s separation for misconduct and directed the issuance of a General Discharge Certificate. On 11 November 2008, the applicant redeployed to Fort Carson. On 12 December 2008, he was discharged accordingly in the rank of PFC. 17. Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of the DD Form 214 his was issued contains the entry "See Item 18 (Remarks)." Item 18 contains the entry "Separated on Temporary Records." Item 18 also shows he served in Iraq from: * 11 November 2004 to 1 April 2005 * 22 May to 11 November 2006 * 2 December 2007 to 11 November 2008 18. His ERB, dated 12 December 2008, shows, in part, award of the Army Commendation Medal (2nd Award). His record is void of orders showing he was awarded the Army Commendation Medal (3rd Award) or the Army Commendation Medal (3rd Award) with "V" Device. 19. On 8 May 2009, the Army Discharge Review Board denied his request for an upgrade of his discharge to honorable and determined his discharge was both proper and equitable. 20. On 13 May 2011, a DD Form 215 was issued that added to his DD Form 214 the: * Army Commendation Medal (2nd Award) * Army Achievement Medal (3rd Award * Valorous Unit Award * Army Good Conduct Medal (1st Award) * National Defense Service Medal * Iraq Campaign Medal with 2 bronze service stars * Global War on Terrorism Service Medal * Global War on Terrorism Expeditionary Medal * Army Service Ribbon * Overseas Service Ribbon * Combat Action Badge * Parachutist Badge * Driver and Mechanic Badge with Driver-W Device * Marksman Marksmanship Qualification Badge with Rifle Bar (M-16) 21. On 20 December 2011, a DD Form 215 was issued that added to his DD Form 214 the Purple Heart. 22. The applicant provides: a. Permanent Orders (PO) 254-21, dated 10 September 2008, issued by the U.S. Army Human Resources Command (HRC), which awarded HHD, 2nd Battalion, 10th SFG, the Valorous Unit Award for heroism in action against the enemy in Iraq for the period 1 December 2004 to 30 June 2005. b. PO 119-06, dated 29 April 2009, issued by HRC, which awarded HHC, Special Troops Battalion, 3rd BCT, 4th ID, and its subordinate units, the Meritorious Unit Commendation for meritorious service in Iraq for the period 1 December 2005 to 2 November 2006. c. PO 138-17, dated 18 May 2009, issued by HRC, which awarded HHC, 64th Support Battalion, the Valorous Unit Award for heroism in action against the enemy in Iraq for the period 2 December 2007 to 13 February 2009. 23. Army Regulation 600-8-22 (Military Awards) states the: a. Army Commendation Medal may be awarded to any member of the Armed Forces of the United States who, while serving in any capacity with the Army after 6 December 1941, distinguishes himself or herself by heroism, meritorious achievement, or meritorious service. As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required. b. The bronze "V" device indicates acts of heroism involving conflict with an armed enemy and authorizes the device in conjunction with awards of the Army Commendation Medal, the Air Medal, and the Bronze Star Medal. 24. Army Regulation 635-5 (Separation Documents) then in effect, 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 and DD Form 215. In pertinent part, it states the DD Form 214 is a synopsis of the Soldier’s most recent period of continuous active duty. It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge. Once a DD Form 214 has been issued, do not reissue, except when two DD Forms 215 have been issued and an additional correction is required. 25. Army Regulation 15-185 states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice; direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record; recommend a hearing when appropriate in the interest of justice; or deny applications when the alleged error or injustice is not adequately supported by the evidence and when a hearing is not deemed proper. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. DISCUSSION AND CONCLUSIONS: 1. The applicant's request for a personal appearance hearing was carefully considered. However, by regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 2. PO awarded the 2nd Battalion, 10th SFG, and the 64th Support Battalion, 4th ID, the Valorous Unit Award during the applicant’s period of assignment to each unit. In addition, PO awarded the 3rd BCT, 4th ID, the Meritorious Unit Commendation during his assignment to the unit while his DD Form 214 only shows one award of the Valorous Unit Award. 3. With respect to restoration of his rank to SPC, the evidence of record confirms the applicant received an Article 15 on 14 August 2008 for wrongfully, with the intent to defraud, altering another Soldier’s sworn statement. Part of the punishment imposed was a suspended reduction PFC. However, the suspended reduction was vacated on 23 August 2008 and he was reduced to PFC effective 14 August 2008 and this is the rank he held at the time of his discharge on 12 December 2008. 4. He violated the UCMJ and he was accordingly punished. His punishment included a reduction of one grade. There is no error or injustice. He was properly discharged in the rank of PFC, the rank he held at the time. 5. With respect to the Army Commendation Medal (3rd Award) with "V" Device, the governing Army regulation states that formal recommendations, approval through the chain of command, and announcement in orders are required for personal decorations, which include the Army Commendation Medal. Although he provided DA Forms 638 wherein it shows he was recommended for award of the Army Commendation Medal with "V" Device and the Army Commendation Medal in 2008, there is no evidence that shows orders were published awarding him either award. 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: * voiding his DD Form 214 and DD Forms 215, dated 13 May and 20 December 2011 * issuing him a new DD Form 214 with the entry in item 13 showing the the: * Purple Heart * Army Commendation Medal (2nd Award) * Army Achievement Medal (3rd Award) * Army Good Conduct Medal (1st Award) * National Defense Service Medal (NDSM) * Iraq Campaign Medal with 2 bronze service stars * Global War on Terrorism Service Medal * Global War on Terrorism Expeditionary Medal * Valorous Unit Award (2nd Award) * Meritorious Unit Commendation * Army Service Ribbon * Overseas Service Ribbon * Combat Action Badge * Parachutist Badge * Driver and Mechanic Badge with "W" Driver Device * Marksman Marksmanship Qualification Badge with Rifle Bar (M-16) 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 showing his rank as SPC, Army Commendation Medal (3rd Award) with "V" Device, and a personal hearing. __________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) AR20150003181 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150003181 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1