IN THE CASE OF:  

		BOARD DATE:  11 June 2020

		DOCKET NUMBER:  AR20180005875


APPLICANT REQUESTS:  

*	upgrade of his under other than honorable conditions discharge to honorable
*	correction of his DD Form 214 (Certificate of Release or Discharge from Active 
Duty) to show his service in Iraq 
*	correction of his DD Form 214 to show the Iraq Campaign Medal (ICM), Overseas 
Service Ribbon (OSR), Global War on Terrorism Service Medal (GWOTSM), 
Valorous Unit Award (VUA), Meritorious Unit Commendation (MUC), and the 
Army Achievement Medal (AAM)

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:

*	two DD Forms 149 (Application for Correction of Military Record)
*	DD Form 293 (Application for the Review of Discharge or Dismissal from the 
Armed Forces of the United States)
*	DD Form 214
*	Enlisted Record Brief (ERB)
*	Court Order of Dismissal, dated 18 December 2009
*	memorandum dated 30 July 2012, subject:  Upgrade of Discharge for (applicant)
*	third-party letter of support, dated 3 December 2015
*	Military Officers Association of America(MOAA) information paper, titled:  
Department of Defense (DoD) Issues Updated Guidance on Mental Health 
Discharge Upgrades
*	Domestic Violence Program Certificate of Completion 
*	Department of Veterans Affairs (VA) entitlement to VA benefits decision letter, 
dated, 20 February 2019 

FACTS:

1.  The applicant did not file within the three-year time frame provided in Title 10, U.S. 
Code, section 1552(b); however, the Army Board for Correction of Military Records 
(ABCMR) 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 is requesting correction of his DD Form 214 to show the GWOTSM.  
However, the GWOTSM is already shown on his DD Form 214, therefore, this portion of 
the applicant's requests will not be discussed further in this Record of Proceedings.  

3.  The applicant states:

*	he is requesting the discharge upgrade in order to receive mental health 
counseling
*	he did not receive mental health counseling after his deployment in 2008
*	he deployed in 2008 and his DD Form 214 does not show his deployments 
and/or awards
*	the separation board failed to considered the court's dismissal of his criminal 
charges 
*	procedural errors are identified in a memorandum provided by Major (MAJ) H
*	the errors resulted in denial of due process
*	DoD guidance requires that post-traumatic stress disorder (PTSD) be considered 
as a mitigating factor when reviewing requests for discharge upgrade 

4.  The applicant enlisted in the Regular Army on 20 November 2007.  His ERB shows 
he served in Iraq from 10 September to 29 November 2008 (a period of 2 months and 
20 days).  His ERB shows his unit identification code (UIC) at the time as "WH6JD0," 
Fort Riley, KS.

5.  The applicant's Servicemember's Group Life Insurance Election Certificate shows his 
unit UIC as "WH6JD0" and his unit as "3-1 AHB" (3rd Assault Helicopter Battalion, 1st 
Aviation Regiment), a subordinate unit of the Combat Aviation Brigade, 1st Infantry 
Division, Fort Riley, KS.

6.  U.S. Army Human Resources Command Permanent Orders Number 183-02, dated 
2 July 2009, awarded the MUC to Headquarters and Headquarters Company, Combat 
Aviation Brigade, 1st Infantry Division and its subordinate units for service during the 
period 12 September 2007 to 28 November 2008.

7.  A search for orders for the VUA pertaining to the applicant's unit of assignment was 
conducted with negative results.

8.  The applicant's records contain several DA Forms 4856 (Developmental Counseling 
Form) with dates ranging from 9 June to 9 November 2010 showing the applicant was 
counseled on numerous occasions for acts of misconduct that include missing 
formations, disrespect towards his superior noncommissioned officer (NCO), failure to 
be at his appointed place of duty, and failure to follow instructions.

9.  A civilian court document (case number XXXX759), filed on 31 July 2009, shows the 
applicant was charged with the following:

*	Count I:  That on or about 14 July 2009, unlawfully and intentionally cause 
physical contact with another person, to-wit:  S., a family member or household 
member, in rude, insulting or angry manner (domestic battery)
*	Count II:  That on or about 14 July 2009, intentionally cause physical contact in a 
rude, insulting or angry manner, to another person, to-wit:  J. (battery)

10.  A civilian court document (case number XXXX857), filed on 1 September 2009, 
shows the applicant was charged with the following:

*	Count I:  unlawfully, feloniously and intentionally take or confine a person, to-wit: 
S., by force, threat or deception, with the intent to hold such person to facilitate 
flight or the commission of any crime (kidnapping)
*	Count II:  unlawfully, feloniously and intentionally cause bodily harm to another 
person, to-wit: S., in a manner whereby great bodily harm, disfigurement or death 
could have been inflicted (aggravated battery)
*	Count III:  unlawfully, feloniously and intentionally communicate a threat to 
commit violence with the intent to terrorize another, to-wit: S. (criminal threats)
*	Count IV:  unlawfully and intentionally, by means other than fire or explosive, 
injure, damage, mutilate, deface, destroy or substantially impair the use of any 
property, 2000 Hyundai, in which another, D., has an interest, without the 
consent of said other person, said damage being less than $1000 (criminal 
damage to property)
*	Count V:  unlawfully and intentionally drive a vehicle in willful or wanton disregard 
for the safety of persons or property (reckless driving)
*	Count VI:  unlawfully and intentionally drive a motor vehicle on an highway 
without having a valid driver's license (driving without a valid driver's license)
*	Count VII:  unlawfully and willfully, while driving a motor vehicle, after being 
involved in an accident resulting in damage to a vehicle or other property, failed 
to stop his vehicle at the scene or return to the scene of such accident (leave 
scene of accident)

11.  A civilian court document shows that on 18 December 2009, the charges against 
the applicant in case number XXXX759 were dismissed without prejudice.

12.  On 30 March 2010, the applicant entered a plea of Nolo Contendere for his charges 
in case number XXXX857 and his plea was accepted by the court.  The court found him 
guilty of:

*	Count I:  violation of protective order
*	Count II:  intimidation of a witness
*	Count III:  attempted intimidation of a witness or victim

13.  The Court sentenced the applicant to 19 months in the county jail; however, he was 
credited with 89 days of time served and granted immediate probation.

14.  On 30 November 2010, the applicant underwent a mental health evaluation.  His 
behavior was deemed appropriate, he was fully alert, fully oriented, and cooperative, his 
thinking process was coherent and organized, and his memory was intact.  He was 
diagnosed with partner relational problems per history.

15.  The applicant's records contain a number of DA Forms 4187 (Personnel Action) 
showing his duty status changed on several occasions as follows:

*	29 August 2009, from present for duty (PDY) to civilian confinement 
*	8 October 2009, from civilian confinement to PDY
*	1 February 2010, from PDY to civilian confinement 
*	22 March 2010, from civilian confinement to PDY
*	30 November 2010, from PDY to civilian confinement 
*	21 December 2010, from civilian confinement to PDY
*	8 April 2011, from PDY to absent without leave (AWOL)
*	8 May 2011, from AWOL to dropped from the rolls (DFR)
*	24 May 2011, from DFR to civilian confinement 

16.  On 25 May 2011, the applicant's commander initiated action to discharge him under 
the provisions of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative 
Separations), paragraph 14-12b, based on a pattern of misconduct, with an under other 
that honorable conditions characterization of service.  The reasons cited by the 
commander for the proposed separation action were that the applicant kidnapped 
S., assaulted her on diverse occasions, and violated a protective order.  The 
applicant also violated probation, damaged private property, drove recklessly, and drove 
without a driver's license.  In addition, he also failed to report to his appointed place of 
duty and disobeyed an NCO on diverse occasions.  

17.  Additional DA Forms 4187 show the applicant's duty status changed as follows:

*	8 February 2012, from civilian confinement to PDY
*	10 August 2012, from PDY to AWOL
*	21 August 2012, from AWOL to PDY

18.  In August 20120, a member of the Judge Advocate General provided a synopsis of 
the applicant's offenses.  She stated:

	a.  The applicant was arrested for aggravated kidnapping, aggravated battery, 
criminal threat, reckless driving, and driving without a driver's license.  He failed to 
report to morning formation five times between 9 June and 27 August 2010.  On 
30 November 2010, he was placed under arrest for aggravated assault with a deadly 
weapon.  On 7 April 2011, he caused bodily harm to Ms. B. and Mrs. S; caused 
physical contact in a rude, insulting, or angry manner towards Mrs. S; without authority 
entered the home of Mrs. S. with the intent to commit aggravated battery; without legal 
authority restrained Mrs. S; unlawfully placed a child under 18 years of age in a situation 
where he/she could be injured; and unlawfully took the cell phone belonging to Ms. B.

	b.   On 8 April 2011, the applicant failed to appear before the county court.  As a 
result, a county bench warrant was issued for his arrest and a bond was set at $50,000. 
On 25 May 2011, separation proceedings were initiated against the applicant in 
accordance with AR 635-200, chapter 14, paragraph 14-12b.  On 21 June 2011, the 
separation packet was sent certified mailed to the county jail where the applicant was 
being held.  On 22 June 2011, he acknowledged receipt of his separation packet.  After 
consulting with Trial Defense Services (TDS) telephonically on 19 August 2011, he 
requested that his case be heard by an administrative separation board and 
representation by TDS.  

	c.  On 5 December 2011, the applicant was sentenced to serve 19 months in the 
county jail.  On 20 October 2011, he was found guilty of obstructing the legal process. 
He was sentenced on 5 December 2011 to 7 months confinement with 12 months 
probation.  This sentence was to run consecutive with his 19 months sentence. 
Because the separation was initiated under the provisions of AR 635-200, paragraph 
14-12b instead of paragraph 14-5 (Conviction by Civil Court), the administrative 
separation board could not be held while he was in civilian confinement.  He was 
released from confinement on 24 April 2012 on probation.

19.  On 24 July 2012, an administrative separation board convened to determine if the 
applicant should be separated prior to the expiration of his term of service (ETS).  The 
board determined the following allegations were supported by a preponderance of the 
evidence:

*	kidnapping of Mrs. S
*	assaulting Mrs. S on diverse occasions
*	violating a protective order
*	violating probation
*	damage to private property
*	driving recklessly
*	driving without a valid driver’s license
*	failing to report to his appointed place of duty on diverse occasions
*	disobeying an NCO on diverse occasions

20.  The separation board recommended the applicant's separation prior to his ETS with 
an under other than honorable conditions character of service.

21.  On 7 August 2012, the separation authority approved the administrative separation 
board's findings and recommendations and directed the applicant's discharge under the 
provisions of AR 635-200, paragraph 14-12b, with his service characterized as under 
other than honorable conditions.

22.  The applicant's DD Form 214 confirms he was discharge on 11 September 2012 
with an under other than honorable conditions characterization of service.  His DD Form 
214 also shows in:  

	a.  block 12f (Foreign Service), no entry indicating he performed foreign service; 

	b.  block 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons 
Awarded or Authorized), he was awarded or authorized the:

*	National Defense Service Medal
*	GWOTSM
*	Army Service Ribbon

	d.  block 18 (Remarks), no entry showing his service in Iraq

23.  There are no orders or any other evidence in the applicant's available records 
showing he was awarded the AAM.  There is also no evidence indicating he performed 
other overseas service in addition to his service in Iraq.

24.  The Army Discharge Review Board denied the applicant's request for an upgrade of 
his discharge on 7 March 2018.

25.  The applicant provided memorandum dated 30 July 2012, subject:  Upgrade of 
Discharge for (applicant), issued by MAJ H, Senior Defense Counsel, Fort Riley Field 
Office, stating the following:

  This memorandum is in support of an upgrade to [the applicant's] discharge 
  characterization.  I am [the applicant's] attorney and I represented him at his 
  administrative separation board.  The procedural errors in this case warrant an 
  upgrade of his discharge.

The process was severely flawed and [the applicant] was denied due process.  First, 
he did not have adequate time·to prepare his case.  On or about 15 July 2012, [the 
applicant's] platoon leader, [First Lieutenant (1LT) S], ordered him to "lay low" so as 
not to get in any further trouble before the administrative separation board.  At that 
time he had not been informed that his board was scheduled for 24 July.  [1LT S] 
made it clear to [the applicant] that "lay low" entailed not reporting for duty.  I 
confirmed this myself through conversation with [1LT S].  [The applicant] obeyed the 
order, but unfortunately he also lost his cell phone.  As a result, the unit was unable 
to contact him by phone to inform him that he had a board scheduled on 24 July 
2012.  They were also unable to inform him that I needed to meet with him to get a 
list of witnesses, notify those witnesses, and make other preparations for his case.  lt 
should be noted that no one from his command went to his quarters to find him, they 
simply called his phone.  When they could not raise him on his phone, they marked 
him AWOL.

[The applicant] found his phone on 23 July 2012 and checked in with his unit.  He 
discovered for the first time that day that he had a board the following day and that I 
was trying to contact him.  He came to my office at about 1600 on 23 July before his 
board was to convene at 0900 the next morning.  He provided me with a list of six 
witnesses, only one of whom I was able to successfully contact.  I was unable to 
reach his three strongest witnesses (his ex-wife, [Mrs. S.], who would testify to facts 
pertinent to each of his civilian arrests, his squad leader who would tesitify to his 
good work performance and fitness for retention, and his chaplain, who would testify 
about his fitness for retention).  The board did not afford [the applicant] additional 
time to contact those witnesses and proceeded with the board as scheduled.

The second procedural flaw was the incompleteness of the packets provided the 
board members and defense counsel.  The Government failed to include in the 
packets the dismissal of case number XXXXXX759 and the dismissal of two charges 
on case number XXXXXX857.  The Government also failed to include 
documentation that [the applicant] plead "nolo contre"-not "Guilty"-to the remaining 
three charges in case number XXXXXX857.  These documents were supplemented 
into the record before the board adjourned to deliberate.  The prejudice is clear:  the 
board had incomplete files that they were able to reference and consider days ahead 
of time and only had the benefit of a few minutes to consider the exculpatory 
documents the Government had withheld.

Finally, the Government also failed to include a written statement to the Riley County 
Police from [Mrs. S] wherein she retracted earlier verbal statements implicating [the 
applicant] in an assault against her.  The Government attorney did not have a copy 
of this document, signifying that the Government apparently did not even attempt to 
retrieve this document from the Riley County Police Department.  If [the applicant] 
had been given sufficient time to meet with me and prepare his case, I could have 
made efforts to track down [Mrs. S] statement.

These significant procedural flaws prejudiced [the applicant] and prevented him from 
adequately defending himself at the board.  The fair remedy is to upgrade his 
discharge to General Under Honorable Conditions.


26.  The applicant provided letter of support, dated 3 December 2015, also issued by 
MAJ H, stating the following:

I am writing to advocate on behalf of [the applicant] and ask that you consider 
approving him for the maximum amount of benefits permitted under Titles 38 and 
42 of the United States Code to Soldiers who have been administratively separated 
from the Army with an other than honorable characterization of discharge.

I was [the applicant's] detailed defense counsel for the separation board hearing.  
We presented a well-planned and adequately supported case to demonstrate that a 
characterization of general under honorable conditions was more appropriate than 
an other than honorable discharge.

It is important that [the applicant] be given access to the benefits the law does not 
outright prevent him from enjoying.  Without them, he is and will continue to struggle 
to become a productive, contributing member of society.

27.  The applicant provided a Domestic Violence Program Certificate of Completion 
showing he successfully completed the program, which he attended from 3 January to 
16 February 2018, and a VA entitlement to VA benefits decision letter, dated 
20 February 2019, showing he was granted service connection for treatment purposes 
only for migraine headaches and PTSD with major depressive disorder, alcohol use 
disorder, and tobacco use disorder (claimed as PTSD with anxiety and depression).  

28.  On 2 April 2020, the Army Review Boards Agency psychologist/medical advisor 
provided an advisory opinion.  The advisory found no evidence of a behavioral health 
condition at the time of the applicant's service which would mitigate the misconduct that 
led to his discharge.  A copy of the complete medical advisory was provided to the 
Board for their review and consideration.  

29.  The applicant was provided a copy of the advisory opinion on 29 April 2020 and 
given an opportunity to submit comments.  He did not respond.  

BOARD DISCUSSION:

1.  The Board carefully considered the applicant’s request, supporting documents, 
evidence in the records and published DoD guidance for consideration of discharge 
upgrade requests.  The Board considered the applicant’s statement, his record of 
service, his ERB showing service in Iraq, the frequency and nature of his misconduct, 
his arrest and civilian confinement, the outcome of the administrative separation board 
and the reason for his separation.  The Board found no evidence to show the applicant 
was awarded an AAM or that a unit he served in was awarded a VUA during his period 
of service.  The applicant’s DD Form 214 already reflects a GWOTSM.  The Board 
determined that the applicant’s service in Iraq should be added to his DD Form 214 as 
should a Meritorious Unit Commendation and an Iraq Campaign Medal, however the 
applicant did not meet the criteria for award of the Overseas Ribbon.  
 
2.  The Board considered the letters of support from the Senior Defense Counsel, one 
pertaining him contesting the administrative separation board proceedings and one 
advocating for maximum benefits for the applicant.  The Board considered the 
applicant’s post-service Certificate of Completion and his VA benefits decision letter 
granting service connection for treatment purposes.  The Board considered the review 
and conclusions provided by the ARBA medical advisor.  The Board found insufficient 
evidence of in-service mitigating factors or post-service achievements to overcome the 
misconduct that led to his separation.  The Board concurred with the opinion of the 
advising official and did not find sufficient evidence of a condition that would mitigate the 
misconduct or would support a medical discharge.  Based on a preponderance of 
evidence, the Board determined that the character of service the applicant received 
upon separation was not in error or unjust.   

3.  After reviewing the application and all supporting documents, the Board found that 
partial relief was warranted.


BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:XXX	:XX	:XXX	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 Form 214 for the period of service ending 11 September 2012 as 
follows:
	-     item 12f (Foreign Service) – 00 02 20;
		-     item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons 
Awarded or Authorized) – add “MUC” and “Iraq Campaign Medal”, and;
-	Item 18 (Remarks) – add “SERVICE IN IRAQ FROM 20080910-20081129” .

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 upgrade of his discharge, award of the AAM, the OSR or 
the VUA.
 


		  
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, U.S. Code, 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 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 sets forth the basic authority for the separation of enlisted personnel.  

	a.  Chapter 14 establishes policy and prescribes procedures for separating members 
for misconduct.  Specific categories include minor disciplinary infractions, a pattern of 
misconduct consisting solely of minor military disciplinary infractions, a pattern of 
misconduct consisting of discreditable involvement with civil or military authorities or 
conduct prejudicial to good order and discipline, commission of a serious offense, and 
convictions by civil authorities.  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 appropriate for a Soldier 
discharged under this chapter.  

	b.  Paragraph 3-7a states 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.

	c.  Paragraph 3-7b states a general discharge is a separation from the Army under 
honorable conditions.  When authorized, it is issued to a Soldier whose military record is 
satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

3.  On 3 September 2014, the Secretary of Defense directed the Service Discharge 
Review Boards and Service Boards for Correction of Military/Naval Records to carefully 
consider the revised PTSD criteria, detailed medical considerations and mitigating 
factors, when taking action on applications from former service members 
administratively discharged under other than honorable conditions and who have been 
diagnosed with PTSD by a competent mental health professional representing a civilian 
healthcare provider in order to determine if it would be appropriate to upgrade the 
characterization of their service.  

4.  On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and 
Readiness issued clarifying guidance for the Secretary of Defense Directive to Service 
Discharge Review Boards and Service Boards for Correction of Military/Naval records 
when considering requests by Veterans for modification of their discharges due in whole 
or in part to:  mental health conditions, including PTSD; traumatic brain injury; sexual 
assault; or sexual harassment.  Boards are to give liberal consideration to Veterans 
petitioning for discharge relief when the application for relief is based in whole or in part 
on those conditions or experiences.  The guidance further describes evidence sources 
and criteria and requires Boards to consider the conditions or experiences presented in 
evidence as potential mitigation for misconduct that led to the discharge.


5.  AR 600-8-22 (Military Awards) states:

	a.  The ICM is awarded to members who have served in direct support of Operation 
Iraqi Freedom.  The ICM 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.  During the applicant's period of service in Iraq, 
campaign participation was awarded for the Iraqi Surge (10 January 2007-31 December 
2008)

	b.  The AAM is awarded to any member of the Armed Forces of the United States 
who distinguished himself or herself by meritorious service or achievement of a lesser 
degree than required for award of the Army Commendation Medal.  As with all personal 
decorations, formal recommendations, approval through the chain of command, and 
announcement in orders are required.  

	c.  The OSR is awarded for successful completion of overseas tours.  According to 
the Awards and Decorations Branch of the 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).

	d.  The VUA is awarded for extraordinary heroism in action against an armed enemy 
of the United States while engaged in military operations involving conflict with an 
opposing foreign force or while serving with friendly foreign forces engaged in an armed 
conflict in which the United States is not a belligerent party for actions occurring on or 
after 3 August 1963.

6.  Army Regulation 635-5 (Separation Documents), in effect during the applicant's 
active duty service, prescribed the separation documents prepared for Soldiers upon 
retirement, discharge, or release from active military service or control of the Army.  It 
provides standardized policy for the preparation of the DD Form 214 and states:

	a.  in block 12f, enter the total amount of foreign service completed during the 
period covered in block 12c (Net Service This Period).

	b. in block 13, list awards and decorations for all periods of service in the priority 
sequence specified in Army Regulation 600-8-22.  Each entry will be verified by the 
Soldier’s records.

	c.  in block 18, for an active duty Soldier deployed to a foreign country with his or 
her unit during their continuous period of active service, enter the statement 
"SERVICE IN (name of country deployed) FROM (inclusive dates for example, 
YYYYMMDD-YYYYMMDD)."

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	 AR20180005875


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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