IN THE CASE OF:	  

		BOARD DATE:	        04 DECEMBER 2008

		DOCKET NUMBER:  AR20080014299 


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 item 11 (Last Duty Assignment and Major Command) of his DD Form 214 (Report of Separation from Active Duty) be changed to show that he was serving in Iraq at the time of his discharge on 
31 July 1978.  He also requests that his DD Form 214 be corrected to show two campaign ribbons, a folded American flag, and the Purple Heart.  He further requests a DD Form 215 (Correction to DD Form 214) which shows that he served in the Persian Gulf War.

2.  The applicant states, in effect, that his military records only show his service when he was a teenager during peacetime, but does not show the highly advanced training he received as being a freedom fighter and liberator during the Persian Gulf War.  He also believes that his records should show he was a graduate cadet in Colorado Springs, Colorado and other places.  He further states that the easiest way for the Army to find out who he was and what he did during the Persian Gulf War is to look up his social security number.  Additionally, he states that he knows no one likes red tape, but every day he finds someone who messed things up, so he has to go out and set things straight again.  Further, he states that he needs his DA Form 201 (Military Personnel Records Jacket) which proves that he was a participant in the Persian Gulf War against Osama Bin Laden.  




3.  The applicant provides a copy of his DD Form 214 with handwritten comments 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 military records show that he enlisted in the Regular Army on 19 May 1977.  He completed initial entry training at Fort Sill, Oklahoma and was awarded military occupational specialty 13B (Cannon Crewman).  He remained at Fort Sill for his initial permanent duty assignment, and he was assigned to Battery B, 2nd Battalion, 1st Field Artillery Regiment in August 1977.  

3.  On 17 February 1978, the applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for being disrespectful in language toward his superior noncommissioned officer (NCO).  His punishment consisted of 10 days of extra duty and 10 days of restriction.

4.  On 18 March 1978, the applicant accepted NJP under Article 15 of the UCMJ for being disrespectful in language toward his superior NCO.  His punishment consisted of a reduction in rank and pay grade from private first class/E-3 to private/E-2, 7 days of extra duty, and 7 days of restriction.

5.  On 27 March 1978, the applicant accepted NJP under Article 15 of the UCMJ for wrongfully communicating a threat to an NCO while holding a steel pipe in his hand and striking it with his hand, wrongfully using provoking words towards the charge of quarters, and dereliction in the performance of his duties.  His punishment consisted of a reduction in rank from private/E-2 to private/E-1, a forfeiture of $195.00 pay per month for 2 months, and 10 days of extra duty.



6.  On 2 May 1978, the applicant was placed in confinement.  On 8 May 1978, the applicant was convicted by a summary court-martial for behaving with disrespect towards a lieutenant colonel, being disrespectful in language towards his superior NCO, and being disrespectful in language and deportment towards a second NCO.  He was sentenced to a forfeiture of $250.00 pay and confinement at hard labor for 30 days.  He was transferred to the United States Army Retraining Brigade (USARB) at Fort Riley, Kansas to continue his confinement.  On 1 June 1978, he was released from confinement, but continued to be assigned to the USARB, Fort Riley, Kansas.

7.  On 21 June 1978, the applicant accepted NJP under Article 15 of the UCMJ for being disrespectful in language and deportment towards his superior NCO.  His punishment consisted of a forfeiture of $25.00 pay per month for 1 month and 14 days of extra duty.

8.  On 26 June 1978, the applicant accepted NJP under Article 15 of the UCMJ for being disrespectful in deportment towards two NCOs.  His punishment consisted of a forfeiture of $50.00 pay per month for 1 month and 14 days of restriction.

9.  On 28 June 1978, the applicant's acting commander requested that he be discharged under the provisions of Chapter 14 (Separation for Misconduct), Army Regulation 635-200 (Enlisted Personnel) because of his frequent incidents of a discreditable nature.  On 19 July 1978, the applicant acknowledged that he had been advised by consulting counsel of the basis for the contemplated action to accomplish his separation for misconduct, and waived consideration of his case by a board of officers, and elected not to submit statements in his own behalf.  

10.  On 27 July 1978, the proper separation approved the applicant's discharge, but did so under the provisions of Chapter 13 (Separation for Unsuitability), Army Regulation 635-200.  Despite the applicant's extensive record of NJP and his court-martial conviction, the separation authority directed that the applicant be furnished an Honorable Discharge Certificate.  On 31 July 1978, the applicant was discharged accordingly.

11.  The applicant requested that item 11 of his DD Form 214 be changed to show that he was serving in Iraq at the time of his discharge on 31 July 1978.  However, his military records show that he did not serve overseas at any time during his military service.  



12.  The applicant also requested that his DD Form 214 be corrected to show two campaign ribbons, a folded American flag, and the Purple Heart.  However, the applicant did not qualify for any campaign medals during his 13 months of active duty.  There also has never been a provision of law that required a flag be issued to Soldiers who separated prior to retirement or prior to completing 20 qualifying years of service for retired pay eligibility at age 60.  Additionally, as the applicant only served at Fort Sill, Oklahoma and Fort Riley, Kansas in 1977 and 1978, he obviously did not serve during a time period or in a location in which he could possibly have become entitled to award of the Purple Heart.

13.  A query of the Gulf War Data Base of the applicant's social security number revealed that the applicant did not serve in the Gulf War during Operations Desert Shield/Desert Storm.  

14.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound sustained while in action against an enemy or 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 by medical personnel, and the medical treatment must have been made a matter of official record.

15.  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 ABCMR.  This regulation provides that 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.

16.  The Stolen Valor Act of 2005, signed into law by President George W. Bush on 20 December 2006, is a United States (U.S.) law that broadens the provisions of previous U.S. law addressing the unauthorized wear, manufacture, sale or claim (either written or verbal) of any military decorations and medals.  It is a Federal misdemeanor offense, which carries a punishment of imprisonment for not more than 1 year and/or a fine.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that item 11 of his DD Form 214 should be changed to show that he was serving in Iraq at the time of his discharge on 31 July 1978.  He also contends that his DD Form 214 should be corrected to show two campaign ribbons, a folded American flag, and the Purple Heart.  He further contends that he should be issued a DD Form 215 which shows that he served in the Persian Gulf War.
2.  The applicant's contention that he was serving in Iraq immediately before his discharge on 31 July 1978 is clearly without merit.  The evidence of record clearly shows that he was assigned to the USARB, Fort Riley, Kansas at the time of his discharge on 31 July 1978.

3.  The applicant's contention that his DD Form 214 should be corrected to show two campaign ribbons, a folded American flag, and the Purple Heart were also considered, but found to have no merit.  There is no evidence in his military records, and the applicant provided no evidence which shows he qualified for any campaign medals during his 13 months of active duty from 19 May 1977 to 
31 July 1978.  He also did not retire from the Army or complete 20 qualifying years of service for retired pay eligibility at age 60 to be eligible for issuance of an American flag.  Further, as he only served at Fort Sill, Oklahoma and Fort Riley, Kansas in 1977 and 1978, he obviously did not serve during a time period or in a location in which he could possibly have become entitled to award of the Purple Heart.

4.  The applicant contends that he reentered active duty after his discharge on 
31 July 1978, and that he received highly advanced training that he used in the Persian Gulf War.  He also contends that he was a graduate cadet at Colorado Springs, Colorado and other places.  There is absolutely no evidence which shows that he served on active duty after his discharge on 31 July 1978 or that he participated in the Persian Gulf War.

5.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.  In view of the foregoing, there is no basis for granting any relief to the applicant in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X_____  ____X____  ___X_____  DENY APPLICATION




BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      _______ _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)                                         AR20080014299



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ABCMR Record of Proceedings (cont)                                         AR20080014299



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