IN THE CASE OF:	  

		BOARD DATE:	        06 NOVEMBER 2008

		DOCKET NUMBER:  AR20080009866 


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 the following changes be made to his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 16 June 1992:

	a.  Item 6 (Reserve Obligation Termination Date) - change to 4 February 1997;

	b.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) - add the Bronze Star Medal, Army Achievement Medal, the Cold War Certificate, the Kuwait Liberation Medal, and the Defense of Saudi Arabia, Liberation and Defense of Kuwait, Southwest Asia Cease-Fire medals; and

	c.  Item 18 (Remarks) - add an entry to show his service during the Gulf War.

2.  The applicant states he earned these medals and certificate and they should be entered on his DD Form 214.  He further states he was recommended for a Bronze Star Medal but he never saw the paperwork after May 1991.  He states he received a dose of sarin (nerve gas) while in Iraq and may be entitled to a Purple Heart.  He further states he wants a new DD Form 214 with these corrections.



3.  The applicant provides, in support of his application, copies of his DD Form 214, the front page of a noncommissioned officer (NCO) evaluation report, a certificate for the award of the Army Achievement Medal, and his Honorable Discharge Certificate.

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.  Award of the Cold War Recognition Certificate is not governed by the provisions of Army Regulation 600-8-22 and, as a result, is not shown on a discharge document.  In accordance with section 1084 of the fiscal year 1998 National Defense Authorization Act, the Secretary of Defense approved awarding the Cold War Recognition Certificate to all members of the armed forces and qualified federal government civilian personnel who faithfully and honorable served the United States any time during the Cold War era, which is defined as 2 September 1945 to 26 December 1991.  The applicant may submit a request in writing to U.S. Army Human Resources Command, Cold War Recognition Program, ATTN:  AHRC-CWRS, Hoffman II, Room 3N45, 200 Stovall Street, Alexandria, Virginia  22332-0473.  Based on this information, the applicant's request for the Cold War Recognition Certificate will not be discussed further in these proceedings.

3.  The applicant's military personnel record shows he enlisted in the Army Reserve in the Delayed Entry/Enlistment Program (DEP) on 17 December 1988.

4.  On 31 January 1989, the applicant enlisted in the Regular Army for a period 
of 4 years.  He successfully completed basic combat and advanced individual training and was awarded the military occupational specialty 93C (Signal Intelligence Analyst).

5.  On 18 October 1989, the applicant was assigned to the Headquarters and Headquarters Company, 124th Military Intelligence Battalion, at Fort Stewart, Georgia.

6.  The Defense Manpower Data Center (DMDC) compiled a Desert Shield/Storm Data Base that contains one record for each active duty member who participated in theater between 2 August 1990 and 31 July 1991 and one record for each Reserve/National Guard member or retiree who was activated or federalized in response to Desert Shield/Desert Storm.  For Reserve and Guard members, the file includes those persons activated or federalized from 2 August 1990 through 31 December 1991.  A Phase II file lists active duty personnel who served in theater between 1 August 1991 and 31 December 1993.  There are also separate files covering calendar years 1994 and 1995.

7.  The DMDC Desert Shield/Storm Data Base shows the applicant participated in theater during the period from 1 October 1990 to 21 March 1991.

8.  On 16 June 1992, the applicant was released from active duty.  He had completed 3 years, 4 months, and 16 days of active service that was characterized as honorable.

9.  Item 6 of the applicant's DD Form 214 records his reserve obligation termination date as 16 December 1996.

10.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 does not show he was awarded the Army Achievement Medal.  Item 13 does not contain entries for Defense of Saudi Arabia, Liberation and Defense of Kuwait, or Southwest Asia Cease-Fire medals.  Item 13 does show the applicant is authorized the Southwest Asia Service Medal with two bronze service stars and a Kuwait Liberation Medal.

11.  The certificate for the award of the Army Achievement Medal submitted by the applicant was signed by a lieutenant colonel and contains Permanent Order Number 23-17.

12.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) provides that under the provisions of Title 10, U.S. Code, section 12103(d), each person who becomes a member of a U.S. Armed Force, either by enlistment, appointment, or induction, will serve in the U.S. Armed Forces for a total initial period of 8 years.  Any part of such service that is not active duty will be performed in a Reserve Component.  A person's statutory military service runs concurrent with a contractual military service obligation.
13.  Army Regulation 635-5 (Personnel Separations) provides that item 6 of the DD Form 214 refers to the member's completion date of the statutory service obligation incurred by all personnel on initial enlistment or appointment into the Armed Forces.  DEP time is credited in computing this date.

14.  Army Regulation 600-8-22 (Military Awards) provides that service in the Persian Gulf War is to be recognized by award of the Southwest Asia Service Medal to Army members who participated in Operations Desert Shield/Desert Storm in the designated area on or after 2 August 1990.  A bronze service star is authorized for the Defense of Saudi Arabia (2 August 1990 to 16 January 1991), the Liberation and Defense of Kuwait (17 January to 11 April 1991), and the Cease-Fire (12 April 1991 to 30 October 1995) campaigns.

15.  Army Regulation 600-8-22 provides that 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.

16.  Army Regulation 600-8-22 provides that 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.

17.  Army Regulation 635-5 (Separation Documents), in pertinent part, provides that when an active duty Soldier is deployed with his unit during the period covered by the DD Form 214, an entry will be made in item 18 to show the name of the country deployed to and the inclusive dates in YYYY/MM/DD format.

18.  Army Regulation 600-8-22 provides, in pertinent part, that the Purple Heart is awarded for a wound sustained as a result of hostile action.  Substantiating evidence must be provided to verify that the wound was the result of hostile action, the wound must have required treatment, and the medical treatment must have been made a matter of official record.  A wound is defined as an injury to any part of the body from an outside force or agent sustained as a result of hostile action.  This regulation provides examples of enemy-related injuries which clearly justify award of the Purple Heart, one of which is injury caused by enemy released chemical or biological agent.



19.  Army Regulation 635-5 provides, in pertinent part, that a DD Form 214 may be reissued only when:

	a.  directed by proper appellate authority, Executive Order, or by the Secretary of the Army;

	b.  it is determined that the corrections to be made will not fit within the correction block of a single DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty);

	c.  two DD Forms 215 have been issued and an additional correction is required; and

	d.  the character of service is to be changed.

20.  Title 10 of the U.S. Code, section 1130, provides the legal authority for consideration of proposals for decorations not previously submitted in a 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 contends the date in item 6 of his DD Form 214 is incorrect.

2.  The applicant incurred an 8-year military service obligation on 17 December 1988, the date he enlisted in the DEP.  Therefore, the date 16 December 1996 in item 6 of his DD Form 214 is correct.

3.  The applicant contends the Army Achievement Medal; Kuwait Liberation Medal; and Defense of Saudi Arabia, Liberation and Defense of Kuwait, and Southwest Asia Cease-Fire medals should be entered on his DD Form 214.

4.  The certificate for the award of the Army Achievement Medal is sufficient evidence in this case to show the applicant was awarded the Army Achievement Medal.  Therefore, it is appropriate to include this award on his DD Form 214.

5.  The Defense of Saudi Arabia, Liberation and Defense of Kuwait, and Southwest Asia Cease-Fire medals requested by the applicant are not medals but designated campaigns that took place during the Southwest Asia Conflict.

6.  The DMDC Desert Shield/Storm Data Base shows the applicant participated in theater during the period from 1 October 1990 to 21 March 1991.  Based on this service, the applicant participated in the Defense of Saudi Arabia Campaign (2 August 1990 to 16 January 1991) and the Liberation and Defense of Kuwait Campaign (17 January to 11 April 1991).  Therefore, he is authorized two bronze service stars to be worn on his Southwest Asia Service Medal as correctly shown in item 13 of his DD Form 214.

7.  Item 13 of the applicant's DD Form 214 shows he is authorized the Kuwait Liberation Medal.  However, based on his period of service in Southwest Asia, he is authorized both the Kuwait Liberation Medal awarded by the Kingdom of Saudi Arabia (KLM-SA) and the Kuwait Liberation Medal awarded by the Government of Kuwait (KLM-K).  Therefore, it is appropriate to include these two awards on the applicant's DD Form 214.

8.  Based on the applicant’s service in Southwest Asia in support of Operations Desert Shield and Desert Storm, it is appropriate to include an entry in item 18 of his DD Form 214 to show his service in Southwest Asia by adding the entry "Southwest Asia Service:  1990/10/01 - 1991/03/21."

9.  The applicant contends he may be entitled to a Purple Heart because he was exposed to a nerve agent while he was in Iraq.  However, there is no evidence of record and the applicant has not submitted any evidence that shows he was exposed to a nerve agent or that he received an injury as a result of that exposure.  Therefore, there is insufficient evidence to award the Purple Heart in this case.

10.  The applicant contends he was recommended for a Bronze Star Medal.  However, there are no orders in his military personnel records for award of the Bronze Star Medal and no record of the recommendation he mentioned.  While the available evidence is insufficient for awarding the applicant a Bronze Star Medal, this in no way affects the applicant’s right to pursue his claim for the Bronze Star Medal by submitting a request through his Member of Congress under the provisions of Title 10, U.S. Code, section 1130.

11.  Any corrections made as a result of the Board's recommendation in this case do not justify the reissuance of a DD Form 214.



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 making the following amendments to his DD Form 214:

   a.  item 13 - delete the Kuwait Liberation Medal; add the Army Achievement Medal, the Kuwait Liberation Medal (KLM-SA), and the Kuwait Liberation Medal (KLM-K); and

	b.  item 18 - add "Southwest Asia Service:  1990/10/01 - 1991/03/21."

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 reserve obligation termination date, the Bronze Star Medal, the Purple Heart, the Defense of Saudi Arabia, Liberation and Defense of Kuwait, or Southwest Asia Cease-Fire medals, and the re-issue of a DD Form 214.



      __________XXX_______________
                 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)                                         AR20080009866



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