IN THE CASE OF:	   

		BOARD DATE:	         9 October 2008

		DOCKET NUMBER:   AR20080004259 


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 correction of his record to show award of the Army Commendation Medal, the Humanitarian Service Medal, and an additional award for his service in the Gulf War.

2.  The applicant states, in effect, that the Army Commendation Medal he was awarded at the time of his separation is not annotated on his DD Form 214 (Certificate of Release or Discharge from Active Duty).  He also states that his DD Form 214 should reflect the Humanitarian Service Medal his unit was awarded for its role in the Hurricane Andrew Disaster Relief Operation.  The applicant further states he was recommended for an award, which he never received, for his service during the Gulf War.  He concludes that he is uncertain which award he was recommended for, but he would like to have it if it can be located.

3.  The applicant provides a DD Form 214, an Army Commendation Medal Certificate, and a Veterans Affairs Form 21-4138 (Statement in Support of Claim) as additional documentary evidence in support of this application.

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 record shows he enlisted in the Regular Army and entered active duty on 4 September 1990.  He completed basic combat training and advanced individual training.  Upon completion of advanced individual training, he was awarded the military occupational specialty (MOS) 96R (Ground Surveillance Systems Operator).  The applicant was released from active duty upon the expiration of his required active service on 14 August 1994 with an honorable characterization of service.  At the time of his release from active duty, the applicant held the rank of specialist (SPC)/pay grade E-4.

3.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of the applicant’s DD Form 214 shows he was awarded the Army Service Ribbon, Army Lapel Button, National Defense Service Medal, Southwest Asia Service Medal with one bronze service star, Kuwait Liberation Medal - Saudi Arabia, the Parachutist Badge, Sharpshooter Marksmanship Qualification Badge with M16 Bar, Overseas Service Ribbon, Army Achievement Medal with one oak leaf cluster, and Army Good Conduct Medal.  The DD Form 214 does not show award of the Army Commendation Medal or the Humanitarian Service Medal.

4.  Item 9 (Awards, Decorations, and Campaigns) of the applicant’s DA Form 
2-1 (Personnel Qualification Record) shows award of the Humanitarian Service Medal for service in support of the Hurricane Andrew Disaster Relief Operation during the period August through October 1992.  The DA Form 2-1 does not show award of the Army Commendation Medal.

5.  The applicant’s records do not contain orders awarding him the Army Commendation Medal.

6.  The applicant provides a Department of the Army, Army Commendation Medal Certificate, dated 29 July 1994.  This certificate shows Headquarters, 82d Airborne Division, Fort Bragg, North Carolina, Permanent Orders 113-3 awarded the applicant the Army Commendation Medal for meritorious service during the period 12 April 1992 through 11 July 1994.


7.  The applicant's records do not contain a DA Form 638 (Recommendation for Award) or memorandum showing the applicant was recommended for an additional award for his service in the Gulf War that is not already annotated on his DD Form 214.

8.  Army Regulation 600-8-22 (Military Awards) provides that the Army Commendation Medal may be awarded to any member of the Armed Forces of the United States who, while serving in any capacity with the Army after 6 December 1941, distinguished himself or herself by heroism, meritorious achievement or meritorious service.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

9.  Army Regulation 600-8-22 provides, in pertinent part, that the Humanitarian Service Medal is awarded to members who distinguished themselves by meritorious direct participation in a Department of Defense approved significant military act or operation of a humanitarian nature.  A service member must be on active duty at the time of direct participation, must have directly participated in the humanitarian act or operation within the designated geographical area of operation and within specified time limits, and must provide evidence that substantiates direct participation.  Table C-1 of Army Regulation 600-8-22 shows that the Hurricane Andrew Disaster Relief Operation (23 August to 10 November 1992 in Florida and 26 August to 8 October 1992 in Louisiana) was approved by the Department of Defense as qualifying for award of the Humanitarian Service Medal.

10.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military 
Records (ABCMR).  Paragraph 2-9 contains guidance on the burden of proof.  It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct.  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.  
Paragraph 2-11 contains guidance on ABCMR hearings and it states that applicants do not have a right to a hearing before the ABCMR.  


11.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that his record should be corrected to show award of the Army Commendation Medal, the Humanitarian Service Medal, and an additional award for his service in the Gulf War were carefully considered and determined to have partial merit.

2.  Permanent Orders awarded the applicant the Army Commendation Medal.  Therefore he is entitled to have his record corrected to show award of the Army Commendation Medal.

3.  Evidence shows the applicant was awarded the Humanitarian Service Medal for his service in support of the Hurricane Andrew Disaster Relief Operation during the period August through October 1992.  Therefore he is entitled to have his record corrected to show award of the Humanitarian Service Medal.

4.  The applicant's records do not contain, and he has not provided, any evidence showing he was recommended for an additional award for his service in the Gulf War that is not already annotated on his DD Form 214.  Additionally, 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.  In the absence of such evidence, there is insufficient evidence to grant the requested relief.  This action in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.


5.  While the available evidence is insufficient for awarding the applicant an additional award for his service in the Gulf War, this in no way affects the applicant’s right to pursue his claim for an additional award for his service in the Gulf War by submitting a request through his Member of Congress under the provisions of 10 USC 1130.

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 to show award of the Army Commendation Medal and the Humanitarian Service Medal.

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 awarding the applicant an additional award for his service in the Gulf War.




      _______ _   _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)                                         AR20080004259





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ABCMR Record of Proceedings (cont)                                         AR20080004259



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