IN THE CASE OF: BOARD DATE: 9 May 2018 DOCKET NUMBER: AR20160010619 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: 9 May 2018 DOCKET NUMBER: AR20160010619 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 deleting the Overseas Service Ribbon from item 13 of his DD Form 214, ending 11 February 2014, and adding the Overseas Service Ribbon (2nd Award). 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 upgrading his discharge to honorable. ___________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: 9 May 2018 DOCKET NUMBER: AR20160010619 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 his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show: * award of a second Overseas Service Ribbon (OSR) * he received an honorable discharge 2. He states that his Department of Veterans Affairs (VA) Summary of Benefits indicates that his service was honorable and he completed foreign service in Korea and Iraq. 3. He provides his DD Form 214, ending 11 February 2014, and his VA Summary of Benefits, dated 23 December 2015. 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. He enlisted in the Regular Army on 16 June 2005. His Enlisted Record Brief, dated 12 February 2014, shows the applicant completed foreign service in: * Korea, 10 June 2006 to 2 June 2008 * Iraq, 1 July 2010 to 6 June 2011 * Afghanistan, 1 March 2013 to 16 June 2013 3. He accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on 2 May 2013 for the wrongful possession of oxycodone and disobeying a lawful order while assigned at the Forward Operation Base Shank, Afghanistan. 4. On 30 September 2013, his commander notified the applicant of his intent to initiate separation action against him under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c for misconduct which included, abuse of illegal drugs, disobeying the lawful order of a noncommissionned officer, dereliction in the performance of his duties, and failure to report on two occasions. His commander indicated that he intended to recommend an under other than honorable conditions characterization of service. 5. On 30 September 2013, the applicant acknowledged receipt of the commander's intent to separate him and he was advised of the basis for the contemplated separation action, the type of discharge he could receive, and of the procedures/rights available to him. 6. On 2 October 2013, he consulted with legal counsel and he was advised of the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him. He acknowledged that he understood he could encounter substantial prejudice in civilian life if a general discharge was issued to him. He requested counsel and a personal appearance before an administrative separation board. However, he agreed to waive his request to an administrative separation board if he was granted an honorable characterization of service. 7. The applicant appeared before an administrative separation board on 14 November 2013. The Board found that a preponderance of the evidence supported the allegations related to his wrongfully possession of oxycodone, failure to obey a lawful order, and failure to report on 10 April 2012. The allegations of failure to report on 29 February 2012 and dereliction of duty were not supported by a preponderance of the evidence. 8. The Board recommended the applicant be separated from the service with a general under honorable conditions characterization of service. 9. On 15 January 2014, the appropriate approval authority directed the applicant be separated from the Army prior to the expiration of current term of service with a general under honorable conditions characterization of service. 10. He was discharged by reason of misconduct on 11 February 2014. His DD Form 214 for this period of service shows: * he served in Iraq from 2 July 2010 to 20 June 2011 * he was awarded the: * Army Commendation Medal * Army Achievement Medal * Meritorious Unit Commendation * Army Good Conduct Medal (2nd Award) * National Defense Service Medal * Global War on Terrorism Service Medal * Korean Defense Service Medal * Iraq Campaign Medal with campaign star (2nd Award) * Noncommissioned Officer Professional Development Ribbon * Army Service Ribbon * OSR * North Atlantic Treaty Organization Medal * Combat Action Badge * Basic Aviation Badge * Driver and Mechanic Badge with Driver-Tracked Vehicle and Driver-Wheeled Vehicle Clasps * Expert Marksmanship Qualification Badge with Rocket Launcher Bar 11. The applicant provides his VA Summary of Benefits, dated 23 December 2015, which shows his service was characterized as honorable from 16 June 2005 to 11 February 2014. 12. On 10 March 2017, the Army Discharge Review Board (ADRB) denied the applicant's request for an upgrade of his discharge to honorable. 1. Army Regulation 600-8-22 (Military Awards) prescribes Army policy, criteria, and administrative instructions concerning individual and unit military awards. The OSR is awarded for successful completion of overseas tours. 2. According to the Awards Branch of U.S. Army Human Resources Command, Iraq and Afghanistan are considered isolated areas where tour lengths have not been established by the Department of Defense. Soldiers who serve 11 cumulative months in a 24-month period or 9 continuous months in Iraq or Afghanistan receive credit for a completed short tour (rules 6 and 8 of Army Regulation 614-30 (Overseas Service), table 3-2, apply). 3. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Chapter 14 establishes policy and prescribes procedures for separating personnel for misconduct, including the commission of a serious offense. The regulation specifies that 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 discharge under other than honorable conditions is normally considered appropriate for members separated under these provisions. b. 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 have been clearly inappropriate. c. A general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. DISCUSSION: 1. The applicant requests upgrade of his discharge to honorable and award of a second OSR. 2. The applicant was punished under Article 15, UCMJ for a drug offense for to the possession of oxycodone and disobeying a lawful order. As a result, his commander initiated separation action and the evidence of record shows he was properly and equitably discharged in accordance with regulations in effect at the time. He received a general discharge, under honorable conditions. The type and the reasons for separation were appropriate considering all the facts of the case. There is no evidence of procedural or other errors that would have jeopardized his rights. 3. The VA Summary of Benefits provided by the applicant does indicate that his service was characterized as honorable. His service is characterized as under honorable conditions; however, he is not entitled to the same benefits as an individual who received an honorable characterization. An honorable discharge is 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 have been clearly inappropriate. Based on the misconduct that led to his discharge, the applicant does not meet the criteria for an honorable discharge. 4. His DD Form 214 shows he was awarded an OSR. Regulatory guidance states that the OSR is awarded for successful completion of overseas tours. The applicant completed tours in Korea and Iraq. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160010619 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160010619 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2