IN THE CASE OF:	  

	BOARD DATE:	  24 JUNE 2008

	DOCKET NUMBER:  AR20080001326 


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, in effect, that his separation document (DD Form  
214) be corrected to reflect the awards of the Bronze Star Medal, Meritorious Service Medal, and any medals and ribbons authorized for his service in the Republic of Vietnam and Southwest Asia.  He requests reconsideration for the award of the Purple Heart.  Also, he requests for his promotion to Chief Warrant Officer Four (CW4) be reinstated.

2.  The applicant states, in effect, that he was a veteran of the U.S. Air Force, U.S. Marine Corps, U.S. Army Reserve, and the Army National Guard.  He states that he is entitled to the above awards and his promotion to CW4.

3.  He states, in effect, that he served with the 24th Ordnance Company,  
260th Quartermaster Battalion, 24th Infantry Division (Mechanized) during Operation Desert Shield, where he “supervised the downloading of Corps Support Heiser, sending thousands of tons of ammunition to the North.”  He led his company into hostile territory and established ammunition storage points.  He trained medical personnel and provided medical support to eight wounded Soldiers from the 24th Infantry Division.  He states that he engaged in hand-to-hand combat with an Iraqi Soldier, who was trying to detonate chemical ammunition to contaminate several thousand men in the Battalion.  He further states he was recommended for the Meritorious Service Medal and the Bronze Star Medal.  He is entitled to the Purple Heart because he suffered from head trauma, loss of consciousness, hematoma and a concussion.


4.  He concludes by stating he was promised his promotion to CW4 effective  
13 May 1996, 1 year before his reassignment to the Retired Reserve on 
12 June 1997.  He never received his campaign ribbons for serving in Korea and in the Vietnam War.

5.  The applicant provides a copy of his personal statement; DD Form 214 (Discharge Document) from the U.S. Marine Corps; NGB Form 22 (Report of Separation and Record of Service); DD Form 214 and DD Form 215 (Correction to the DD Form 214); DA Form 638 (Recommendation for Award) for the Bronze Star Medal with proposed narrative; two memoranda, dated 4 February 1994 and 
30 January 1995 that recommends approval for award of the Bronze Star Medal; DA Form 638 (Recommendation for Award) for the Meritorious Service Medal with proposed narrative; five Noncommissioned Officer Evaluation Reports (NCOERs); Chronological Record of Medical Care; U.S. Army Reserve Personnel Center Orders Number M-09-500294, dated 14 September 1990; promotion memorandum from Headquarters, Fifth United States Army, dated 
1 April 1985; Notification of Discharge from the Air Reserve Records Center, dated 20 October 1959; U.S. Army Reserve Personnel Center Orders Number 
C-02-705188, dated 11 February 1997; and a letter from the Department of Veterans Affairs, dated 27 September 2007.

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.  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 ARAC95-08558, on 21 February 1996.



3.  Army Regulation 15-185 sets forth procedures for processing requests for correction of military records.  Paragraph 2-15b governs requests for reconsideration.  This provision of the regulation allows an applicant to request reconsideration of an earlier ABCMR decision if the request is received within one year of the ABCMR's original decision and it has not previously been reconsidered.  

4.  The staff of the ABCMR reviewed the applicant’s request for reconsideration and determined that it was not received within 1 year of the ABCMR's original decision.  As a result, this portion of the applicant’s request is effectively returned without further action and it will not be discussed further in these proceedings.  The ABCMR will not consider any further requests for reconsideration of this matter.  

5.  The applicant's military personnel record shows he had prior military service with the U.S. Air Force and U.S. Marine Corps between 22 October 1952 and  
23 July 1963.

6.  He enlisted in the Army National Guard on 23 November 1976 and served as an enlisted Soldier until he was honorably separated on 5 October 1981.  On  
14 May 1982, he was appointed as a Reserve Warrant Officer of the Army and was transferred to Headquarters and Headquarters Company (HHC),  
336th Ordnance Battalion, Little Rock, Arkansas.  He was promoted to Chief Warrant Officer Two (CW2), effective 14 May 1985.

7.  On 20 September 1990, the applicant was ordered to active duty as part of the Presidential call-up in support of Operation Desert Storm/Desert Shield.  His DD Form 214 shows his service in Southwest Asia was during the period of  
15 October 1990 to 15 April 1991.  He was released from active duty and transferred to the U.S. Army Control Group (Individual Mobilization Augmentee), St. Louis, Missouri on 20 May 1991.

8.  His Official Military Personnel File (OMPF) to include his DD Form 214 from the U.S. Marine Corps and it does not contain any evidence of him serving in the Republic of Vietnam and Korea.  A copy of his DD Form 214 from the U.S. Air Force shows he was awarded the Korean Service Medal and United Nation Service Medal.  However, there is insufficient evidence in his OMPF to verify these foreign awards.




9.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) shows all the awards he were authorized, however, it does not show the awards of the Bronze Star Medal, Meritorious Service Medal, and any medals and ribbons authorized for his service in the Republic of Vietnam and Korea.

10.  A DD Form 215 was later issued to show the applicant was awarded the Southwest Asia Service Medal with three bronze service stars and the Kuwait Liberation Medal.

11.  The DA Forms 638 submitted by the applicant for the Bronze Star Medal and Meritorious Service Medal shows the applicant was recommended for these awards but the recommendations were not approved.

12.  Title 10 of the United States Code, section 1130 (10 USC §1130) provides the legal authority for consideration of proposals for decorations not previously submitted in timely fashion.  It allows, in effect, that upon the request of a Member of Congress, the Secretary concerned shall review a proposal for the award or presentation of a decoration (or the upgrading of a decoration), either for an individual or a unit, that is not otherwise authorized to be presented or awarded due to limitations established by law or policy for timely submission of a recommendation for such award or presentation.  Based upon such review, the Secretary shall make a determination as to the merits of approving the award or presentation of the decoration.

13.  A review of the applicant's records indicates entitlement to additional awards that are not shown on his DD Form 214.

14.  The Kuwait Liberation Medal awarded by the Kingdom of Saudi Arabia (KLM-SA) was approved on 3 January 1992 and is awarded to members of the Armed Forces of the United States who participated in the Persian Gulf War between 17 January 1991 and 28 February 1991.

15.  The Kuwait Liberation Medal awarded by the Government of Kuwait (KLM-K) was approved on 9 November 1995 and is awarded to members of the Armed Forces of the United States who participated in the Persian Gulf War between 2 August 1990 and 31 August 1993.

16.  Army Regulation 600-8-104 (Military Personnel Information Management/Records), in pertinent part, states that for U.S. military decorations the only acceptable source documentation is the order, letter, or memorandum which awards the decoration.  Award certificates, citations, or separation certificates alone will not be the basis for entry of a decoration.

17.  In the processing of this case, an advisory opinion was obtained from the U.S. Army Human Resources Command (USAHRC) on 4 April 2008.  The USAHRC states that the applicant was selected for promotion to CW4 by the 1996 DA Reserve Components CW4 Selection Board, with a promotion eligibility date (PED) of 14 May 1997.  However, the applicant had a mandatory retirement date of 14 May 1996, which was prior to his PED of 14 May 1997.  Therefore, his name was removed from the Board's official results on 31 October 1996.

18.  On 17 April 2008, a copy of the advisory opinion was forwarded to the applicant for his comment.   The applicant has not responded to the advisory opinion as of 20 May 2008.

19.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers other than General Officers), states, in pertinent part, that an officer is ineligible for promotion if he or she was removed from an active status before promotion was finalized or was not in an active status or was in an active status in error at the time of consideration.

DISCUSSION AND CONCLUSIONS:

1.  While the available evidence is insufficient for awarding the applicant the Bronze Star Medal and Meritorious Service Medal this in no way affects the applicant’s right to pursue his claim for the Bronze Star Medal and Meritorious Service Medal by submitting a request through his Member of Congress under the provisions of 10 USC §1130.

2.  The available evidence does not show the applicant’s service in the Republic of Vietnam and Korea.  His DD Form 214 from the U.S. Air Force show he was awarded the Korean Service Medal and United Nations Service Medal.  However, there is insufficient evidence in his OMPF to verify these foreign awards.  Therefore, he is not entitled to correction of his records to show any awards and decorations authorized for the Republic of Vietnam and Korea.

3.  In accordance with Army Regulation 135-155, if an officer is removed from active status before promotion is finalized or was not in an active status he is ineligible for promotion.  As stated by the advisory opinion from USARHRC dated 4 April 2008, the applicant had a mandatory retirement date of 14 May 1996, which was prior to his PED of 14 May 1997.  Therefore, his name was removed from the Board's official results on 31 October 1996.  As such, he is not entitled to correction of his records to show promotion to CW4.

4.  Evidence shows that the applicant was awarded the Kuwait Liberation Medal. However, it does not indicate whether the medal was awarded by the Kingdom of Saudi Arabia or by the Government of Kuwait.  As such, in the interest of equity it would be best to remove this award and add the awards of the Kuwait Liberation Medal awarded by the Kingdom of Saudi Arabia (KLM-SA) and Kuwait Liberation Medal awarded by the Government of Kuwait (KLM-K) for the period of service from 15 October 1990 to 15 April 1991. 

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 the awards of the Kuwait Liberation Medal awarded by the Kingdom of Saudi Arabia (KLM-SA) and Kuwait Liberation Medal awarded by the Government of Kuwait (KLM-K).

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 award of the Bronze Star Medal and Meritorious Service Medal, and to the promotion to CW4.




       _    ___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)                                         AR20080001326



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ABCMR Record of Proceedings (cont)                                         AR20080001326



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