BOARD DATE: 28 August 2020 DOCKET NUMBER: AR20190015504 APPLICANT REQUESTS: in effect- * correction to item 12f (Foreign Service) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to add his foreign service * correction of his DD Form 214 to show he was not afforded dental and medical care prior to his discharge * correction to item 18 (Remarks) of his DD Form 214 to reflect the appropriate entries denoting the location and period of his foreign service * an upgrade of his character of service * copy of his medal records * documentation of discharge in lieu of court martial APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Letter from Applicant, dated 23 June 2020 * Request for Personnel File, dated 22 June 2020 * Letter from Applicant, dated 22 June 2020 * Verification of Request for Personnel File, undated * SF 180 (Request Pertaining to Military Records), 15 June 2020 * DA Form 1695 (Oath of Extension of Enlistment), dated 7 November 2003 * DA Form 3340-R (Request for Reenlistment or Extension by the Regular Army, dated 7 November 2003 * Deployment Orders, Permanent Orders 50-01, dated 19 February 2004 * Request for Discharge in Lieu of Court Martial Memorandum, dated 25 June 2004 * Enlisted Record Brief (ERB), dated 20 July 2004 * Separation Orders, Orders 210-0357, dated 28 July 2004 FACTS: 1. The applicant did not file within the three-year period provided in Title 10, United States Code, in section 1552(b); however, the 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 states that he is a homeless veteran and his discharge is preventing him from receiving medical care from the Department of Veteran’s Affairs. He states that in early 2004 he was involved in an incident with his spouse, which led to the disciplinary action imposed. Upon completing his punishment, he then deployed in support of Operation Iraqi Freedom; shortly after his arrival he was informed that he would be returning to Fort Hood to be discharged. He does not recall getting into any trouble while deployed that would cause him to receive an under other than honorable conditions discharge. He further states: a. His DD Form 214 does not reflect his foreign service. b. His DD Form 214 inaccurately states he was afforded medical and dental care before his discharge, which did not occur. c. He was not aware of any referral to a court-martial while he was serving in Iraq, nor upon his return to the United States. However, he does recall speaking with an officer in Iraq and there was a suggestion that he would be subject to a court-martial and confinement in Kuwait. (1) He believes that the guidelines within Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, Section 1a, paragraphs (1) and (2) were not properly followed in regards to his separation process. d. He was not provided a copy of his discharge proceedings per AR 635-200, Chapter 10, Section 9. 3. The applicant enlisted into the Regular Army on 21 June 2001 and he was assigned to his first duty station, B Company, 3rd Battalion, 8th Cavalry, 1st Cavalry Division, Fort Hood, TX, on 9 February 2002. 4. His record shows he extended his enlistment in the Regular Army for reason of contingency deployment conditions on 7 November 2003. 5. A DA Form 4187 (Personnel Action) shows, on 18 November 2003 at 0500 hours, the applicant failed to report to morning accountability formation at Fort Hood, Texas. His duty status changed from present for duty to absent without leave (AWOL). 6. A DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)), dated 18 November 2003, shows a non-transferrable flag for adverse action (A) was initiated effective 18 November 2003. 7. The applicant's company commander sent the applicant's next of kin (NOK) two letters, dated 21 November 2003 and 12 December 2003, wherein he informs the applicant's NOK: a. The applicant had been AWOL since 18 November 2003, dropped from the rolls (DFR) effective 18 December 2003, and was administratively classified as a deserter. b. The applicant's continued absence could result in a trial by court-martial, confinement, loss of pay and allowances, and the loss other privileges and military benefits. c. Civilian and military law enforcement agencies had been notified and had been requested to apprehend the applicant. The commander also asked the NOK to return to military control without delay, and if he returned, he would receive a fair hearing and the opportunity to present any information and matters of mitigation on his behalf. 8. On 18 December 2003, his duty status changed from AWOL to dropped from rolls (DFR). This action was verified on a DA Form 4187 and signed by the commanding officer on 18 December 2003. This action subsequently generated a warrant for the applicant’s arrest. 9. A DD Form 458 (Charge Sheet), dated 18 December 2003, show charges were preferred against the applicant for the below misconduct: a. Charge I - On or about 18 November 2003, without authority and with intent to remain away therefrom permanently, absent himself from his unit and did remain absent in desertion until on or about _______. b. Charge II – On or about 18 November 2003, without authority absent himself from his unit and did remain so absent until on or about _______. 10. A DA Form 268 shows the applicant's flag was removed effective 19 December 2003, though it is still reflected on his ERB. 11. A DA Form 4187 shows the applicant's duty status changed from DFR to present for duty effective 17 January 2004. 12. Permanent Orders 026-01 issued on 26 January 2004 and Permanent Orders numbers 50-01, dated 19 February 2004, both issued by Headquarters 1st Cavalry Division, Fort Hood, TX, show: a. The applicant's unit and all unit personnel on the attached manifest (not available) were attached on a temporary change of station for the duration of a deployment tin support of Operation Iraqi Freedom (OIF-2). b. Personnel would be deployed to Central Command (CENTCOM) Area of Responsibility (AOR) in support of (ISO) OIF2 for a period of 365 days, or until the mission is complete. The will proceed date was listed as 11 March 2004. 13. A DA Form 4430 (Department of the Army Report of Result of Trial) contains the following information: a. A trial by special court-martial on 24 February 2004, convened by Court-Martial Convening Orders 51, dated 28 October 2002, convicted the applicant and found him guilty of the following offenses in accordance with his pleas of guilty – * AWOL (18 November 2003 to 16 January 2004) * Missing movement by design (18 November 2003) * Wrongful use of amphetamine (on or about 14 November 2003) b. His sentence included a reduction in rank/grade to private first class (PFC)/E-3 and confinement for thirty days. It was recommended that the applicant's request to defer confinement be approved, and if approved that the sentence to confinement be suspended. It was further recommended that the applicant be sent to Iraq with his unit. c. 24 February 2004 was listed as the date the sentence was adjudged and the effective date of any forfeiture or reduction in rank. 14. Two DA Forms 4187 show: * the applicant's duty status changed from present for duty to confined by military authority on 24 February 2004, for a period of 30 days * the applicant's duty status changed from confined by military authority to present for duty on 15 March 2004; he was released for good behavior and to deploy 15. The available evidence does not show the date the applicant arrived in Iraq. 16. The evidence indicates the applicant again had court-martial charges preferred against him. However, the full details/separation packet is unavailable. 17. A memorandum, issued by the Commanding General (CG), Headquarters, 1st Cavalry Division, Camp Victory, Iraq, on 24 June 2004, Subject: Request for Discharge in Lieu of Court-Martial – (Applicant)…, includes the following information: a. The CG approved the applicant's request for discharge in lieu of court-martial. Based on the CG's review of the applicant's record and the information contained in his files, the CG determined that the charged misconduct was sufficiently serious to warrant separation and that the applicant had no rehabilitative potential. b. The CG directed that the applicant be discharged for the good of the service, under the provisions of Army Regulation 635-200, chapter 10, and be issued an under other than honorable conditions discharge. The charges of wrongfully using a controlled substance and larceny of government property that form the basis for this action will be withdrawn from trial and discontinued effective the date of discharge. The applicant will be reduced to the lowest enlisted grade/rank. 18. The available evidence does not show the date the applicant departed Iraq. 19. The applicant's DD Form 214 contains the following information: * item 4.a. (Grade, Rank, or Rank) and item 4.b. (Pay Grade) – PV1/E-1 * item 12f (Foreign Service) – 0000 00 00 * item 17 (Member was provided a complete dental exam and all appropriate dental services and treatment within 90 days prior to separation) - No * item 18 (Remarks) – does not contain an entry denoting a deployment to Iraq * item 23 (Type of Separation) – Discharge * item 24 (Character of Service) – Under Other Than Honorable Conditions * item 26 (Separation Authority) – Army Regulation 635-200, Chapter 10 * item 28 (Narrative Reason for Separation) – In Lieu of Trail by Court-Martial * The DD Form does not contain an item or block intended to indicate whether medical services were provided 20. An official from the Defense Finance and Accounting Service confirmed, in an email dated 17 August 2020, that the applicant had foreign service in Iraq/Kuwait from 19 April 2004 to 18 July 2004 (3 months and 2 days). 21. Army Regulation 635-5 (Personnel Separations) states item 12f is information that is taken from the ERB/ORB in reference to the completed foreign service time served. The applicant provides an ERB which shows he did not receive credit for such service. The remarks portion of the DD Form 214 will state “SERVICE IN (NAME OF COUNTRY DEPLOYED) FROM (including the dates)." 22. Army Regulation 635-200, states Chapter 10, Discharge in Lieu of Trial by Court- Martial, applies to Soldiers who have committed an offense or offenses, the punishment for which under the UCMJ and the Manual for Courts-Martial, 2002 (MCM 2002), includes a bad conduct or dishonorable discharge. A discharge under other than honorable conditions normally is appropriate for a soldier who is discharged in lieu of trial by court-martial. However, the separation authority may direct a general discharge if such is merited by the soldier’s overall record during the current enlistment. 23. Army Regulation 15-185 (ABCMR), paragraph 2-9 states the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 24. The Board should consider the applicant's statements and his service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that partial relief is warranted. 2. The Board agreed that the confirmation from the Defense Finance and Accounting Service that the applicant served in Kuwait/Iraq during the period 19 April 2004 to 18 July 2004 (3 months and 2 days) is sufficient as a basis for correcting his DD Form 214 to accurately reflect his foreign service. 3. The Board noted that the applicant's DD Form 214 shows "No" in item 17, indicating he did not receive a complete dental exam and all appropriate dental services and treatment within 90 days prior to separation. The Board further noted that there is no block on the DD Form 214 referencing medical care. As such, the Board determined the DD Form 214 is correct and no change is required to address these matters. 4. The Board carefully considered the applicant's request, supporting documents, evidence in the records, and published Department of Defense guidance for consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, the reason for his separation and whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors and the applicant provided no evidence of post- service achievements or letters of reference in support of a clemency determination. 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. 5. Regarding his request for a copy of his medal records and documentation of his discharge in lieu of court martial, the applicant is advised that the ABCMR is not a records repository. If he wishes to receive a copy of his military service and medical records, he may submit a request to the National Personnel Records Center in St. Louis, MO. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : X : :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 adding the following to his DD Form 214: * Item 12f – "0000 03 02" * Item 18 – "Service in Kuwait/Iraq from 20040419 to 20050718" 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 any relief in excess of that described above. X_________________ 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, United States 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 ABCMR to excuse an applicant's failure to timely file within the 3 year statute of limitations if the Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Army Regulation 635-5 (Personnel Separations) dated 15 September 2000, states Foreign Service is calculated from the ERB/ORB, enter the total amount of foreign service completed during the period covered in block 12c. The remarks portion will be used for Headquarters Department of the Army (HQDA) mandatory requirements when a separate block is not available, and as a continuation for entries in blocks 11, 13, and 14. An active duty soldier deployed with his or her unit during continuous period of active service, will have the statement “SERVICE IN (NAME OF COUNTRY DEPLOYED) FROM (inclusive dates for example, YYYYMMDD – YYYYMMDD. 3. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), dated 15 July 2004, in effect at the time of the applicant's discharge, set policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of soldiers for a variety of reasons. Readiness is promoted by maintaining high standards of conduct and performance. a. Chapter 3 of this regulation addressed character of service: (1) Paragraph 3-7a. states an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the soldier’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. (2) 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) Paragraph 3-7c. states a discharge under other than honorable conditions is an administrative separation from the Service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, homosexual conduct, security reasons, or in lieu of trial by court martial in the following circumstances: (1) When the reason for separation is based upon a pattern of behavior that constitutes a significant departure from the conduct expected of soldiers of the Army; and (2) When the reason for separation is based upon one or more acts or omissions that constitutes a significant departure from the conduct expected of soldiers of the Army. b. Chapter 10 (Discharge in Lieu of Trial by Court-Martial), paragraph 10-1 (General): (1) paragraph 10-1a. - A soldier who has committed an offense or offenses, the punishment for which under the UCMJ and the Manual for Courts-Martial, 2002 (MCM 2002), includes a bad conduct or dishonorable discharge, may submit a request for discharge in lieu of trial by court-martial. (a) paragraph 10-1a(1) - The provisions of RCM 1003(d), MCM 2002 do not apply to requests for discharge per this chapter unless the case has been referred to a court-martial authorized to adjudge a punitive discharge. (b) paragraph 10-1a(2) - The discharge request may be submitted after court- martial charges are preferred against the soldier or, where required, after referral, until final action by the court-martial convening authority. (c) paragraph 10-1a(3) - A soldier who is under a suspended sentence of a punitive discharge may likewise submit a request for discharge in lieu of trial by court- martial. c. Paragraph 10-2 (Personal Decision) - Commanders will ensure that a soldier is not coerced into submitting a request for discharge in lieu of trial by court-martial. The soldier will be given a reasonable time (not less than 72 hours) to consult with consulting counsel and to consider the wisdom of submitting such a request for discharge. Consulting counsel will advise the soldier concerning: (1) Elements of the offense/s charged; (2) Burden of proof; (3) Possible defenses; (4) Possible punishments; (5) Provisions of this chapter; (6) Requirements of volunteerism; (7) Type of discharge normally given under the provisions of this chapter; (8) Rights regarding the withdrawal of the soldier’s request; (9) Loss of veterans’ benefits; and (10) Prejudice in civilian life based upon the characterization of discharge. Consulting counsel may advise the soldier regarding the merits of this separation action and the offense pending against the soldier. After receiving counseling, the soldier may elect to submit a request for discharge in lieu of trial by court-martial. The soldier will sign a written request, certifying that he/she: (1) Has been counseled; (2) Understands his/her rights; (3) May receive a discharge under other than honorable conditions; and (4) Understands the adverse nature of such a discharge and the possible consequences. The soldier also must be advised that pursuant to a delegation of authority a request for discharge in lieu of trial by court-martial may be approved by the commander exercising special court- martial convening authority (a lower level of approval than the GCMCA or higher authority), but the authority to disapprove a request for discharge in lieu of trial by court- martial may not be delegated. The soldier’s written request will also include an acknowledgment that he/she understands the elements of the offense/s charged and is guilty of the charge/s or of a lesser included offense/s therein contained which also authorizes the imposition of a punitive discharge. Additionally, (1) The consulting counsel will sign as a witness, indicating that he/she is a commissioned officer of The Judge Advocate General’s Corps, unless the request is signed by a civilian counsel representing the soldier; (2) A soldier may waive consultation with counsel. If the soldier refuses to consult with counsel, a statement to this effect will be prepared by the counsel and included in the file. The soldier will also state that the right to consult with counsel was waived; and (3) Separation action may then proceed as if the soldier has consulted with a counsel, or the general court-martial convening authority may disapprove the discharge request. d. Paragraph 10-8 (Types of discharge, characterization of service) - A discharge under other than honorable conditions normally is appropriate for a soldier who is discharged in lieu of trial by court-martial. However, the separation authority may direct a general discharge if such is merited by the soldier’s overall record during the current enlistment. e. Paragraph 10-9 (Disposition of Supporting documentation) - The request for discharge in lieu of trial by court-martial will be filed in the MPRJ or local file, as appropriate, as permanent material and disposed of per Army Regulation 600–8–104. Material should include appropriate documentation and the separation authority’s decision. Statements by the soldier or soldier’s counsel submitted in connection with a request per this chapter are not admissible against a soldier in a court-martial except as authorized under Military Rule of Evidence 410, MCM 2002. 4. Army Regulation 15-185 (ABCMR), paragraph 2-9 states the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 5. 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. a. 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 on the basis of 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. b. 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) AR20190015504 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1