ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 10 July 2019 DOCKET NUMBER: AR20180004454 APPLICANT REQUESTS: * reconsideration to his previous request for an upgrade to his under other than honorable conditions discharge * correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) adding authorized awards and overseas tour dates * an appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * DD Form 214 * Applicant’s Continuation Statement from DD Form 293 * Statements from Soldier’s who served in Iraq with Applicant * USA Today Article about Casualties, the Applicant and other Soldier’s wounded in Iraq * Copy of the Army Commendation Medal issued to Applicant * Permanent Orders for the Combat Infantry Badge (CIB) * Copy of The Presidential Unit Citation for Extraordinary Heroism * Approved DA Form 4187/Request for Purple Heart to be issued to Applicant * Copy of Purple Heart Award issued on 11 June 2004 * Post Deployment Health Assessment FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20120014256 on 10 January 2013. 2. The applicant states he would like to have his under other than honorable conditions (UOTHC) discharge upgraded to honorable. He would also like to have his DD Form 214 amended to include the following: Purple Heart Award, Combat Infantryman Badge, Iraq Campaign Medal with two campaign stars (17 December 2003 until 8 July 2004), see the provided Post-Deployment Assessment to verify dates, Army Commendation Medal, The Presidential Unit Citation, Meritorious Unit Commendation (2/6 Infantry), Overseas Service Ribbon, block 12 to show his foreign service of 9 months and 11 days, (arrived in Germany 31 October 2003 until 11 August 2004), block 18 to show service in Iraq from 17 December 2003 until 8 July 2004. 3. The applicant provides: a. A detailed self-authored statement which is a continuation from his application describing the incident and his military and personal experiences. b. Three statements from a fellow Soldiers describing their time served in Iraq with the applicant and the events that led up to the applicant being wounded and his state of mind after suffering from those injuries. c. An article from USA Today that speaks about the tour in Iraq where the applicant was serving, was being extended and how the number of casualties and wounded Soldiers, began to rise. d. A Post-Deployment Health Assessment that places the applicant in theater from 17 December 2003 to 08 July 2004 and notes that he was wounded on 04 June 2004 in a mortar attack. e. A copy of permanent order number 059-015, showing he was awarded the CIB on 28 February 2004 for engaging the enemy in Iraq, a copy of the Presidential Unit Award and a DA form 4187 showing he was awarded the Purple Heart for injuries sustained in combat (Iraq). 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 22 May 2003. It appears that the applicant served in Iraq; however, his available service record is void of documentation showing he was deployed. d. His DD Form 458 (Charge Sheet), dated 3 February 2005, special court-martial charges were preferred against the applicant for one specification of being absent without leave (AWOL) from 12 August 2004 until 31 January 2005. e. On 3 February 2005, he consulted with legal counsel who advised him of the contemplated trial by court-martial and the maximum permissible punishment authorized under UCMJ and the possible effects of a bad conduct or dishonorable discharge if the request is approved and of the procedures and rights available to him. f. Following consultation with counsel, he requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial. In his request for discharge, he indicated: * he was making this request of his own free will and he had not been subjected to any coercion whatsoever by any person * he understood that by requesting discharge he was admitting guilt to the charges against him or of a lesser-included offense that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions * he acknowledged he understood if his discharge request was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration * he acknowledged he understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws * he elected not to submit a statement on his own behalf g. On 23 February 2005, the immediate commander recommended he be discharged under the provisions of AR 635-200, chapter 10, for the good of the service with an under other than honorable conditions discharge. h. Consistent with his commander’s recommendation, the separation authority approved his request for discharge under the provisions of AR 635-200, chapter 10, and directed the issuance of an UOTHC discharge and a reduction to Private/E-1. i. His DD Form 214 shows he was discharged on 11 March 2005, under the provisions of AR 635-200, Chapter 10, for the good of the service in lieu of trial by court- martial with a characterization of service of UOTHC. He completed 1 year and 3 months and 28 days of active service and 1 year, 5 months and 4 days of prior inactive service, with lost time from 12 August 2004 to 31 January 2005. His record also shows he was awarded or authorized the: * National Defense Service Medal * Global War on Terrorism Service Medal * Army Service Ribbon 5. By regulation, 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. 6. By regulation, a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request 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, an UOTHC discharge is normally considered appropriate. 7. 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. BOARD DISCUSSION: The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. After review of the application and all evidence, the Board determined relief is warranted. The applicant’s contentions were carefully considered. He provided copies of awards the Board determined is sufficient evidence to grant relief to add the Purple Heart, ARCOM, ICM, CIB, and Presidential Unit Citation to his separation document. His separation document does not show his foreign-service tour while deployed to OIF; the Board agreed to provide relief by amending the DD Form 214. In reference to the change to his character of service, the Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. He was discharged after a lengthy period of AWOL, an offense criminal in nature. The Board agreed an Under Honorable Conditions (General) character of service is now warranted, as he did not meet the standards of acceptable conduct and performance of duty for Army personnel making him suitable for an Honorable characterization. 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 amendment of the ABCMR's decision in Docket Number AR20120014256 on 10 January 2013. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing him a DD Form 214 for the period ending 11 March 2005 showing his character of service as Under Honorable Conditions (General); and by: a. amending item 12f by adding the entry “00 06 21” b. adding the following awards to item 13: * Purple Heart * Army Commendation Medal * Iraq Campaign Medal with 2 campaign service stars * Combat Infantryman Badge * Presidential Unit Citation c. adding to item 18 the entry “SERVICE IN IRAQ 20031217 – 20040708” 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 character of service to Honorable. 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. Army Regulation (AR) 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that 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. 2. Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. 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. b. Paragraph 3-7b provides that a general discharge, under honorable conditions is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 of that regulation provides, in part, 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 UOTHC discharge is normally considered appropriate. 3. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180004454 4 1