IN THE CASE OF:	  

	BOARD DATE:	  13 May 2008

	DOCKET NUMBER:  AR20080000309 


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 his 22 November 1991 DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to show his rank as a captain, his pay grade as O-3E, his date of birth as 5 November 1954, that he entered active duty (for this period) on 22 August 1990 with adjustment of the related entries in block 12 (Record of Service) and that he had an unspecified period of foreign service.  He also requests that he be shown to have contributed to the Post-Vietnam Era Veteran's Educational Assistance Program (VEAP) and had dental care prior to separation.  He further request that his records be corrected to include award of a "Bronze Star," the Purple Heart, "2 Vietnam Ribbons," and "2 Gulf War Ribbons."  

2.  The applicant states that several entries on his DD Form 214 are in error and should be corrected.  He was born on 5 November 1954 and that he was a captain in pay grade O-3E.  He entered active duty for this period on 22 August 1990 not 25 January 1991.  Correction of this error also requires adjustment of other specific entries for his other periods of service.  He contends that he contributed to the VEAP and that he had a dental examination prior to separation.  Further, not all of his awards are listed on his final DD Form 214.

3.  It is not clear from the applicant's application if he is requesting award of the Bronze Star Medal, the restoration of a bronze service star for his National Defense Service Medal, or a bronze service star for another award.  Therefore, all three issues will be addressed.
4.  The applicant provides copies of his 22 November 1991 DD Form 214, and two awards presentation plaques for service during Operations Desert Shield and Desert Storm.

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.  The applicant's service medical and dental records are believed to be on permanent loan to the Department of Veterans Affairs and are not available for review.

3.  A DD Form 215 (Correction of the DD Form 214), dated 24 November 1992, corrected the applicant's date of birth to 5 November 1954 rendering this issue moot.  Therefore, it will not be addressed further.

4.  The applicant enlisted in the Oklahoma Army National Guard (OKARNG) on 13 August 1972 and served on initial active duty for training (IADT) from 13 June 1973 through 12 October 1973 and was awarded the military occupational specialty (MOS) of 11B (Light Weapons Infantryman).

5.  He was honorably discharged from the OKARNG on 12 February 1975 to enlist in the Regular Army.  His DD Form 214 and his NGB Form 22 (Report of Separation and Record of Service in the OKARNG) list his awards as only the Marksman Marksmanship Qualification Badge with Rifle Bar.

6.  The applicant served on active duty from 13 February 1975 through 28 June 1979, when he was discharged to reenlist.  His DD Form 214 for this period lists only the award of the Good Conduct Medal.  This DD Form 214 shows he had 4 years, 4 months, and 16 days of active service for this period with 4 months of 
prior active service; and 2 years and 2 months of inactive service.  He is also shown to have served in Korea from 24 September 1976 through 18 September 1977.  This form contains no indication of participation in the VEAP.

7.  He reenlisted and continued to serve on active duty until he was honorably discharged on 24 July 1980 by reason of being a sole parent.  His DD Form 214 for this period lists his awards as the Good Conduct Medal and the Air Assault Badge.  His service is reported as 1 year and 26 days, for this period; 4 years, 8 months, and 16 days of prior active service; and 2 years, 2 months, and 1 day of inactive service.  No foreign service is recorded on this form, and block 15 indicates he did not contribute to the VEAP.

8.  The applicant again enlisted in the OKARNG on 22 November 1982 and served until 2 August 1986 when he was discharged to accept a commission.  The NGB Form 22 issued at this time reports he had 3 years, 8 months, and 11 days of service for this period with 2 years and 6 months of prior Reserve service and 5 years, 5 months, and 12 days of prior active Federal service.  His total service for pay is listed as 11 years, 7 months, and 23 days.

9.  The applicant served on active duty from 5 October 1986 through 18 February 1987.  The DD Form 214, issued for this period, lists his awards as the Good Conduct Medal, the National Defense Service Medal, the Army Service Ribbon, the Noncommissioned Officer Professional Development Ribbon with Numeral 2, the Overseas Service Ribbon, the Air Assault Badge, the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16), and the Marksman Marksmanship Qualification Badge with Machinegun Bar (M-60).  The DD Form 214 does not include, at blocks 12c through 12i, any details since he was separated on temporary records.

10.  An NGB Form 22, dated 13 May 1988, shows that the applicant was transferred to the United States Army Reserve (USAR) Control Group (Reinforcement) on that date.  This form lists his service as 1 year, 9 months, and 11 days for this period with 6 years, 2 months, and 11 days of prior Reserve service; and 5 years, 5 months, and 12 days of prior active Federal service, for a total of 13 years, 5 months, and 4 days of service for pay.

11.  On 7 September 1990 the applicant transferred to the USAR (Ready Reserve).

12.  On 24 January 1991 the applicant was ordered to involuntary active duty in support of Operation Desert Shield with a reporting date of 25 January 1991.

13.  The DA Form 2-1 (Personnel Qualification Record), which the applicant last reviewed on 18 January 1990 lists his awards as the Army Reserve Components Achievement Medal, the Good Conduct Medal, the National Defense Service Medal with one bronze service star, the Overseas Service Ribbon, the Army Service Ribbon, the Noncommissioned Officer Professional Development Ribbon with Numeral 2, the Army Reserve Components Overseas Training Ribbon, the Air Assault Badge, and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar. 

14.  The applicant was found to have developed Type II diabetes and was referred to a Physical Evaluation Board (PEB).  The PEB determined that the applicant's condition pre-existed his entrance onto active duty and was not aggravated by his period on active duty.  The PEB recommended that the applicant be discharged for a physical disability without severance pay.  

15.  The applicant concurred with the PEB findings and recommendations and was discharged on 22 November 1991.  

16.  All documents prepared between the applicant's entry onto active duty on 25 January 1991 and his separation on 22 November 1991 list him as a first lieutenant.

17.  The 22 November 1991 DD Form 214 lists his rank as first lieutenant, pay grade O-2E, with a date of rank of 2 August 1989.  His date of birth is listed as 11 August 1954.  Block 12 (Record of Service) shows an entry date of 25 January 1991 with a net active service for this period of 9 months and 28 days; 6 years, 1 month, and 26 days of prior active service; and 9 years, 11 months, and 19 days of prior inactive service.  His awards are listed as the Army Achievement Medal, the Army Reserve Components Achievement Medal, the Good Conduct Medal, the National Defense Service Medal with one bronze service star, the Overseas Service Ribbon, the Army Service Ribbon, the Noncommissioned Officer Professional Development Ribbon with Numeral 2, the Army Reserve Components Overseas Training Ribbon, and the Air Assault Badge.  Block 15a (VEAP) is marked "NO."

18.  The record contains carbon copies of a 22 November 1992 DD Form 215, which are difficult to read.  The corrections are as noted below:

	a.  block 4a (Rank) is not legible;

	b.  block 4b (Pay Grade) is not legible;

	c.  block 5 (Date of Birth), 541105;

	d.  block 11 (Primary Specialty), 11B3Z LIGHT INFANTRY OFFICER, 00 YEARS, 10 MONTHS;

	e.  block 13 (Decorations, Medals, Badges), "Delete" NATIONAL DEFENSE SERVICE MEDAL W/1 STAR;

	f.  block 13, "ADDED" NATIONAL DEFENSE SERVICE MEDAL // SHARPSHOOTER MARKSMANSHIP BADGE RIFLE, M-16 // SHARPSHOOTER MARKSMANSHIP BADGE M-60 MACHINEGUN;

	g.  block 18 (Remarks), "added" ITEM 12D ABOVE DOES NOT ACCOUNT FOR ACTIVE DUTY FOR TRAINING THIS SOLDIER MAY HAVE PRIOR TO DATE ENTERED IN ITEM 12A.

19.  The applicant's record contains several different versions of his personal qualification records (DA Forms 20, DA Form 2-1, and Officer Qualification Briefs).  None of these documents indicate he had any foreign service except for the period in Korea from 24 September 1976 through 18 September 1977.

20.  The available records do not contain any information related to the applicant's elections as regards to participation in the Post-Vietnam Era Veteran's Educational Assistance Program other than the entries on his
DD Forms 214.

21.  The Post-Vietnam Veterans' Educational Assistance Program, also known as VEAP or Chapter 32, is regulated by Title 38, U. S. Code, Chapter 32 and the Educational Assistance Pilot Program (Section 903 of Public Law 96-342).   To qualify for VEAP a Soldier had to make contributions from their military pay to participate in this education benefit program.  Contributions are matched on a $2 for $1 basis by the Government.  Benefit entitlement is 1 to 36 months depending on the number of monthly contributions.  A Soldier has 10 years from the date of release from active duty to use VEAP benefits.  If there is entitlement not used after the 10-year period, any portion remaining in the fund is automatically refunded.  To qualify, a Soldier must have entered service for the first time between January 1, 1977 and June 30, 1985; opened a contribution account before April 1, 1987; voluntarily contributed from $25 to $2700; completed their first period of service; and been discharged or released from service under conditions other than dishonorable. 

22.  Army Regulation 600-8-22 (Military Awards) sets forth the policies and procedures for military awards and decorations.  In pertinent part it states:

	a.  the Bronze Star Medal is awarded, in time of war, for meritorious achievement or service and for heroism.  It is limited to those receiving imminent danger pay.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.  Recommendations must be made within 2 years of the event or period of service and the award must be made within 3 years;  

	b.  the Purple Heart is awarded to an individual who is wounded in action against an enemy of the United States, the armed force of a foreign country which is or has been engaged, while serving with a friendly foreign forces against an opposing force even though the U.S. is not engaged, as the result of any act of such enemy or opposing force or as a result an act of any hostile foreign force. Substantiating evidence must be provided to verify that the wound was the result of hostile action, the wound must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record;

	c.  the National Defense Service Medal is awarded for honorable active duty service for any period between 27 June 1950 and 27 July 1954, both dates inclusive; between 1 January 1961 and 14 August 1974, both dates inclusive; between 2 August 1990 and 30 November 1995; and from 11 September 2001 to a date to be determined;

	d.  the Vietnam Service Medal is awarded to all members of the Armed Forces of the United States for qualifying service in Vietnam after 3 July 1965 through 28 March 1973.  Qualifying service included attachment to or assignment for 1 or more days with an organization participating in or directly supporting 
military operations.  Vietnam and contiguous waters is defined as an area which includes Vietnam and the water adjacent thereto within the specified limits; 

	e.  service in the Persian Gulf War is recognized by award of the Southwest Asia Service Medal.  It is awarded to all members of the Armed Forces of the United States serving in Southwest Asia and contiguous waters or airspace thereover, on or after 2 August 1990 to 30 November 1995.  Southwest Asia and contiguous waters is defined as an area which includes the Persian Gulf, Red Sea, Gulf of Oman, Gulf of Aden, that portion of the Arabian Sea that lies north of 10 degrees N. latitude and west of 68 degrees E. longitude, as well as the total land areas of Iraq, Kuwait, Saudi Arabia, Oman, Bahrain, Qatar, and United Arab Emirates;
	f.  the Korea Defense Service Medal is authorized for award to members of the Armed Forces of the United States who have served on active duty in support of the defense of the Republic of Korea.  Service members must have been assigned, attached, or mobilized to units operating in the area of eligibility for 30 consecutive or for 60 nonconsecutive days, on or after 28 July 1954 to a date to be determined by the Secretary of Defense; and

	g.  a bronze service star is an appurtenance worn on a military award to denote participation in military campaigns or multiple bestowals of the same award or decoration. 

23.  Army Regulation 635-5 (Separation Documents) sets forth the policies and procedures for preparing a DD Form 214.   Block 12f (Foreign Service) is the total amount of foreign service completed during the period covered by the DD Form 214.

DISCUSSION AND CONCLUSIONS:

1.  The applicant served in Korea during the period for which the Korea Defense Service Medal is authorized and it is appropriate to show he is authorized this award.

2.  The applicant's active duty service during his period of IADT from 13 June 1973 through 12 October 1973, and his active duty service during Operation Desert Shield/Desert Storm are both qualifying periods for award of the National Defense Service Medal.  Therefore, the 22 November 1992 DD Form 215 deletion of a second National Defense Service Medal was in error.

3.  The record does not contain and the applicant has not provided any documentation to show he served in a situation where he was authorized imminent danger pay.  Further, there is no available documentation to show that he was recommended for or awarded a Bronze Star Medal. 

4.  The applicant has not provided and the available record contains no documentation to support the applicant's contention that he received a wound as the result of hostile action.  Without a record of treatment for a wound sustained as the result of enemy action entitlement to the Purple Heart cannot be established.



5.  While the applicant served during the Vietnam Era and the First Gulf War periods, he did not serve in the Vietnam or Persian Gulf areas of operation and is not entitled to any awards for such service.

6.  The record contains no indication that the applicant received any award entitling him to additional bronze service stars, except a second award of the National Defense Service Medal.  Therefore, no additional award of a bronze service star is warranted.

7.  It is now appropriate to correct the applicant's records to show his authorized awards as: the Army Achievement Medal, the Army Reserve Components Achievement Medal, the Good Conduct Medal, the National Defense Service Medal with one bronze service star, the Korea Defense Service Medal, the Overseas Service Ribbon, the Army Service Ribbon, the Noncommissioned Officer Professional Development Ribbon with Numeral 2, the Army Reserve Components Overseas Training Ribbon, the Air Assault Badge, the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16), and the Marksman Marksmanship Qualification Badge with Machinegun Bar (M-60).

8.  The available records contain no indication that the applicant was considered or selected for or granted a promotion to captain (O-3E).  

9.  Without access to the applicant's dental records it is impossible to determine if he had dental care within 90 days of his separation.  In the absence of evidence to the contrary, this Board must apply the presumption of regularity in governmental affairs.  There is insufficient evidence in the available records or in the evidence submitted by the applicant to overcome this presumption.

10.  The applicant's available record contains no indication that he contributed to the VEAP.  Further, it appears he would not have been eligible to participate since he first entered service prior to 1 January 1977.

11.  The applicant's records do not show that he any foreign service during his last period on active duty.  Therefore, no entry is appropriate in block 12g.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X ___  ___X____  ___X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was 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 showing that the applicant's authorized awards are the Army Achievement Medal, the Army Reserve Components Achievement Medal, the Good Conduct Medal, the National Defense Service Medal with one bronze service star, the Korea Defense Service Medal, the Overseas Service Ribbon, the Army Service Ribbon, the Noncommissioned Officer Professional Development Ribbon with Numeral 2, the Army Reserve Components Overseas Training Ribbon, the Air Assault Badge, the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16), and the Marksman Marksmanship Qualification Badge with Machinegun Bar (M-60).

2.  The Board further determined that 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 the correction of any entry in block 12; that he had dental care within 90 days of separation; that he contributed to the Post-Vietnam Era Veteran's Educational Assistance Program; and to show he was promoted to captain (O-3E).




      	__________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.

ABCMR Record of Proceedings (cont)                                         AR20080000309



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