ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 31 May 2019 DOCKET NUMBER: AR20160019352 APPLICANT REQUESTS: correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show: * Iraq Campaign Medal with three campaign stars * Second and third enlistment terms be separated * Second enlistment term be added to his continuous honorable service * The listing of his brother as nearest relative instead of his former spouse APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 4 (Enlistment/Reenlistment Document Armed Forces of the United States) * DA Form 3340-R (Request for Reenlistment or Extension in the Regular Army) * DD Form 214 * Decree of Divorce FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states he would like his DD Form 214 and military records to reflect credit for three campaign stars on his Iraq Campaign Medal. His second and third enlistments be separated, his second enlistment added to his continuous honorable active service, and his nearest relative be changed to his brother instead of his former spouse. a. He provided his DD Form 4 and DA Form 3340 to support the correction of his continuous honorable active service to be corrected to read 3 October 2000 to 20 April 2010. b. The divorce decree dated 4 May 2014, shows that the applicant and his former spouse Ms. X____ marriage was terminated at the time of discharge. 3. A review of the applicant’s service records shows: a. He enlisted in the Regular Army on 3 October 2000 and reenlisted on 30 November 2006, and 21 April 2010. He served in Iraq from 15 March 2007 to 2 June 2008 (one campaign, Iraqi Surge) and from 10 October 2009 to 3 November 2010 (through 2 campaigns, Iraqi Sovereignty and New Dawn). b. On 28 March 2012, the applicant was convicted by a general court-martial of one specification of raping Staff Sergeant X and one specification of causing Ms. X to engage in sexual acts by using strength and power. The court sentenced him to reduction to the lowest enlisted grade of E-1, forfeiture of al pay and allowances, confinement for 15 years, and a dishonorable discharge. c. On 1 August 2013, the convening authority approved a lesser sentence of 14 years and 9 months of confinement, reduction to E-1, forfeiture of all pay, and a dishonorable discharge, and except for the dishonorable discharge ordered the sentence executed. The record trial was forwarded to the Judge Advocate General of the Army for appellate review. d. On 8 May 2015, the U.S. Army Court of Criminal Appeals affirmed the findings of guilty and the sentence. e. General Court-Martial Order Number 265, issued by Headquarters, U.S. Army Fires Center, Fort Sill, OK shows the dishonorable discharge would be executed. f. He was discharged on 15 October 2015. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) with a dishonorable discharge. He was assigned Separation Program Designators (SPD) of JJD- court martial. He completed 11 years, 5 months and 25 days of active service this period and he had lost time from 28 March 2012 to 15 October 2015. g. Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows he was awarded or authorized the: * Iraq Campaign Medal with 2 campaign stars * Army Commendation Medal (2nd Award) * Army Achievement Medal * Meritorious Unit Commendation * Army Good Conduct Medal (3rd Award) * National Defense Service Medal * Global War on Terrorism Service Medal * Noncommissioned Officer Professional· Development Ribbon * Armed Forces Service Ribbon * Overseas Service Ribbon (2nd Award) * Driver and Mechanic Badge W/Driver-Wheeled Vehicle(S) Clasp h. Item 18 (Remarks) show several administrative entries including the entry "Continuous Honorable Active Service) 20001003-20061129." i. Item 19b (Nearest Relative), shows the entry "X__, 280 Ab__ Drive, Richmond Hills GA 31324." 5. By regulation AR 635-200 (Active Duty Enlisted Administrative Separations), Section III, Dishonorable and Bad Conduct Discharge, paragraph 3–10, Dishonorable discharge states that a Soldier will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed. Questions concerning the finality of appellate review should be referred to the servicing staff judge advocate. 6. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. 7. By regulation, AR 635-5 (Separation Documents) the DD Form 214 is a summary of a Soldier’s most recent period of continuous active duty. It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge. * Item 19b shows the name and address of the member's nearest relative as provided by the Soldier. * Item 18 shows mandatory entries including an entry for Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except “Honorable”, enter “Continuous Honorable Active Service from” (first day of service for which DD Form 214 was not issued) Until (date before commencement of current enlistment) BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that partial relief was warranted. Based upon the documentary evidence presented by the applicant and found within the military service record, the Board found that the applicant did have periods of prior honorable service that were not currently depicted on his DD214. Additionally, the Board found that the entry depicting reenlistments was in error and required correction. The correct entry should read, “Immediate Reenlistments this period – 20061130-20100420 and 20100421-20151015.” However, the board found that there is no provision for changing next of kin on DD Form 214s; therefore, the Board recommended denying that portion of the applicant’s request. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF X X X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION 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 the applicant’s DD 214 as follows: * deleting Iraq Campaign Medal with 2 campaign stars in Item 13 and replacing it with Iraq Campaign Medal with 3 bronze service stars * deleting the figures, “20001003 – 20061129” in Item 18 and replacing them with the figures, “2000103-20100420” * deleting the figures, “20061130-20151015” in Item 18 and replacing them with the figures, “20061130-20100420 and 20100421-20151015” 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 the next of kin on the applicant’s DD Form 214. 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. REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. AR 635-200 (Active Duty Enlisted Administrative Separations), Section III, Dishonorable and Bad Conduct Discharge, paragraph 3–10, Dishonorable discharge states that a Soldier will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed. Questions concerning the finality of appellate review should be referred to the servicing staff judge advocate. 3. AR 635-5 prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army. It establishes standardized policy for preparing and distributing the DD Form 214. The DD Form 214 is a summary of a Soldier’s most recent period of continuous active duty. It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge. Item 19a shows the name and mailing address of the nearest relative as provided by the Soldier. 4. AR 635-8 (Separations Processing and Documents), currently in effect, provides for the preparation and distribution of the DD Form 214. It states for item 18 (Remarks) to Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except “Honorable”, enter “Continuous Honorable Active Service from” (first day of service for which DD Form 214 was not issued) Until (date before commencement of current enlistment). 5. AR 600-8-22 (Military Awards) states the Iraq Campaign Medal is awarded to members who have served in direct support of Operation Iraqi Freedom (OIF). The Iraq Campaign Medal period of eligibility is on or after 19 March 2003 through 31 December 2011. A bronze service star is authorized for wear with this medal for participation in each credited campaign. Approved campaigns are: * Liberation of Iraq (19 March 2003-1 May 2003) * Transition of Iraq (2 May 2003-28 June 2004) * Iraqi Governance (29 June 2004-15 December 2005) * National Resolution (16 December 2005-9 January 2007) * Iraqi Surge (10 January 2007-31 December 2008) * Iraqi Sovereignty (1 January 2009-31 August 2010) * New Dawn (1 September 2010-31 December 2011) 6. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief based on equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. ABCMR Record of Proceedings (cont) AR20160019352 5 1