IN THE CASE OF:	  

		BOARD DATE:	        28 May 2009

		DOCKET NUMBER:  AR20090000425 


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 12 (Record of Service), Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized), Item 14 (Military Education), Item 18 (Remarks), and Item 27 (Reentry Code) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected.

2.  The applicant states, in effect, that Item 12 of his DD Form 214 should be corrected to add 2 years of Reserve service.  Item 13 should be corrected by adding the Parachutist Badge, Overseas Service Bar, Kuwait Liberation Medal-Kuwait (KLM-KU), Kuwait Liberation Medal-Saudi Arabia (KLM-SA), 1 bronze service star (2nd Award) for his National Defense Service Medal (NDSM), and the Secretary of Defense Medal for the Defense of Freedom.  He also states that Item 14 should include an entry documenting the military occupational specialty (MOS) 19K (M1 Armor Crewman) course he completed and Item 27 should be corrected to show a Reentry (RE) code of RE-1.  

3.  The applicant claims that he graduated from the airborne school and served more than 6 months overseas during Operation Desert Shield/Storm.  He states that he received the KLM-SA and should be eligible for the KLM-KU.  He further states that he was a member of the Michigan Army National Guard (MIARNG) on a short tour to complete training requirements under an active training program and completed the 19K course.  He further states that he was an Army contractor who was blown up by an IED (improvised explosive device) on 28 May 2005 and received an award from the Pentagon.  He claims he served honorably in the MIARNG.
4.  The applicant provides a National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service), ARNG discharge orders, and the Secretary of Defense Medal for the Defense of Freedom award certificate in support of his 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 that he enlisted in U.S. Army Reserve (USAR) Delayed Entry Program (DEP) on 20 June 1989 and that he was discharged from the DEP on 31 August 1989 and enlisted in the Regular Army (RA) and entered active duty on 1 September 1989.  It further shows he was trained in and awarded MOS 67U (CH-47 Helicopter Repairer).  

3.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows, in
Item 5 (Overseas Service), that he served on temporary duty (TDY) in Saudi Arabia from 16 November 1990 through 13 April 1991.  Item 9 (Awards, Decorations & Campaigns) shows that during his active duty tenure he earned the Aircraft Crewmember Badge, National Defense Service Medal (NDSM), Southwest Asia Service Medal (SWASM), Army Achievement Medal (AAM), KLM, Army Commendation Medal (ARCOM), Army Good Conduct Medal (AGCM), and the Expert Marksmanship Qualification Badge with Rifle and Grenade Bars.  It also shows he was credited with participating in the Defense of Saudi Arabia and the Liberation and Defense of Kuwait campaigns.  Item 17 (Civilian Education and Military Schools) does not list a 19K course.

4.  The applicant's Official Military Personnel File (OMPF) contains Headquarters, U.S. Army Infantry Center, Permanent Orders 171-25, dated 5 September 1991, which awarded the applicant the Parachutist Badge based on his successful completion of airborne training, effective 13 September 1991.

5.  The applicant's record and OMPF are void of any entries or documents that indicate he completed a 19K course or that he completed 2 years of Reserve service prior to his discharge from the RA on 4 November 1994.  

6.  On 4 November 1994, the applicant was honorably discharged, in the rank of specialist (SPC).  The DD Form 214 he was issued at the time shows he was discharged under the provisions of paragraph 14-12c, Army Regulation 635-200, by reason of misconduct, and that based on this authority and reason for discharge, he was assigned a Separation Program Designator (SPD) code of JKQ and an RE code of RE-3.  Item 12 shows he completed 5 years, 2 months, and 4 days of active military service during the period covered by the DD Form 214 (1 September 1989-4 November 1994) and that he completed no prior active military service.  It also shows that he completed 2 months and 
11 days of prior inactive service.  

7.  Item 13 of the applicant's DD Form 214, as amended by a DD Form 215 (Correction to DD Form 214) issued on 6 January 2007, shows he earned the following awards:  ARCOM, AAM (4th Award), AGCM, NDSM, SWASM with
3 bronze service stars, Army Service Ribbon, KLM, Air Assault Badge, Driver and Mechanic Badge, and Expert Marksmanship Qualification Badge with Rifle and Grenade Bars.  Item 14 shows he completed a 20-week Helicopter Repairer course in March 1990, Airborne Course in September 1991, Air Assault Course in October 1993, and a 4-week Aviation Life Support Equipment Technical Course in 1990.  Item 18 confirms he served in SWA from 16 November 1990 through 13 April 1991.

8.  The applicant's record shows that he enlisted in the MIARNG on 1 February 2003, and served in that status for 2 years until being honorably discharged from the National Guard, in the rank of SPC, by reason of expiration of term of service and transferred to the USAR on 31 January 2005.  The NGB Form 22 he was issued upon his discharge from the MIARNG confirms he received an RE-1 code. He was subsequently honorably discharged from the USAR on 31 January 2006.  
9.  The applicant provides a partially legible Secretary of Defense Medal for the Defense of Freedom award certificate, which is the civilian equivalent of the Purple Heart that was issued on 12 May 2006 for action that occurred on what appears to be 11 September 2001. 

10.  Army Regulation 600-8-22 (Military Awards) provides the Army's awards policy.  Paragraph 2-10 provides guidance on the NDSM.  It states, in pertinent part, that it is authorized for honorable service for any period between 27 June 

1950 and 27 July 1954, between 1 January 1961 and 14 August 1974, between 
2 August 1990 and 30 November 1995, and from 11 September 2001 to a date to be determined.  It further states that a bronze service star will be worn with the service ribbon to signify receipt of a second or subsequent award of the NDSM.  

11.  Paragraph 5-14 of the awards regulation provides guidance on the 
KLM-SA and states, in pertinent part, that it is authorized for members who participated in Operation Desert Storm between 17 January 1991 and               28 February 1991.  Paragraph 5-15 provides guidance on the KLM-KU and states, in pertinent part, that it is authorized for members who served in support of Operations Desert Shield/Storm between 2 August 1990 and 31 August 1993.

12.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It also establishes standardized policy for preparing and distributing the DD Form 214.  Chapter 2 contains guidance on preparation of the DD Form 214.  It states, in pertinent part, that the DD Form 214 is a summary of a Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge.  There are no regulatory provisions that provide for correcting or reissuing a DD Form 214 to incorporate accomplishments or achievements completed subsequent to the period of active duty service covered by the original DD Form 214.  

13.  The item by item instructions contained in chapter 2 of the separation documents regulations states, in pertinent part, that prior inactive service completed prior to the period covered by the DD Form 214 will be entered in 
Item 12.  The instructions for Item 13 state to enter all authorized military awards in the order of precedence listed in the Army's awards regulation that are earned through the effective date of the DD Form 214.  The instructions for completing Item 14 state to enter courses completed during the period covered by the 
DD Form 214. 

14.  Army Regulation 670-1 (Wear and Appearance of Army Uniforms and Insignia) prescribes the authorization for wear, composition, and classification of uniforms, and the occasions for wearing all personal (clothing bag issue), optional, and commonly worn organizational Army uniforms.  It also prescribes the awards, insignia, and accouterments authorized for wear on the uniform, and how these items are worn.  General information is also provided on the authorized material, design, and uniform quality control system.  Paragraph
28-28 contains guidance on Overseas Service Bars.  It states, in pertinent part, that 1 Overseas Service Bar is authorized for each 6-month period of active 
Federal service as a member of a United States Service in the Persian Gulf during Operation Desert Storm from 17 January 1991 through 31 August 1993.  

15.  Army Regulation 635-5-1 (SPD Codes) prescribes the specific authorities (statutory or other directives), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  Table 2-3 identifies the SPD codes applicable to enlisted personnel and lists the SPD code of JKQ as being applicable to members separated under the provisions of paragraph 
14-12c, Army Regulation 635-200, by reason of misconduct (commission of a serious offense).  The Department of the Army SPD/RE Cross Reference Table indicates that Soldiers separated under the provisions of paragraph 14-12c, 
Army Regulation 635-200, who receive the SPD code of JKQ will receive an 
RE code of RE-3, as did the version of the regulation in effect at the time of the applicant's active duty discharge. 

16.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the USAR.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of armed forces RE codes, including RA RE codes.  RE-1 applies to Soldiers completing his/her term of active service who is considered qualified to reenter the U.S. Army, if all other criteria are met.  RE–3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation,
but disqualification is waivable.  Paragraph 3-23 provides guidance on determining enlistment/assignment eligibility and states that RA enlistment eligibility will be based on the last discharge or separation.  If the last period of service was in a Reserve Component (RC) [excluding IRR (Individual Ready Reserve)] qualification will be based on that separation/discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that Item 13 of his DD Form 214 should be corrected to add the Parachutist Badge, KLM-KU, and KLM-SA was carefully considered and found to have merit.  The evidence of record confirms the applicant completed the basic airborne course and was awarded the Parachutist Badge on 13 September 1991, as evidenced by award orders on file in his OMPF.  Records also show that the applicant served in SWA in support of Operation Desert Storm during the qualifying periods for the KLM-KU and the KLM-SA.  Therefore, it would be appropriate to add these awards to item 13 of the applicant's DD Form 214.

2.  However, although service in SWA entitles a Soldier to wear the Overseas Service Bar on his uniform, because it is an authorized item of wear on the uniform, it is not an authorized award or decoration that requires or supports 
a records or DD Form 214 entry.  In addition, the applicant did not serve              6 months in the Persian Gulf.  Therefore, there is no basis for adding the Overseas Service Bar to Item 13 of his DD Form 214.
 
3.  The evidence of record fails to show the applicant completed a 19K course during the period covered by his DD Form 214; therefore, it must be presumed the applicant completed this course while serving in the MIARNG subsequent to the period covered by the DD Form 214 in question and the course is not authorized for entry on the DD Form 214.

4.  Further, it is also clear that the Secretary of Defense Medal for the Defense of Freedom the applicant  received was also earned subsequent to the period covered by the DD Form 214.  It was also a civilian award and, therefore, not authorized for entry in Item 13 of the applicant's DD Form 214.  In addition, any eligibility for a second award of the NDSM would have had to have been earned subsequent to the period covered by the applicant's DD Form 214 and, therefore, not authorized for inclusion on his DD Form 214.

5.  The record also clearly shows that the prior inactive service the applicant completed in the DEP prior to his entry on active duty was included in Item 12 of his DD Form 214, and there is no indication that he completed any additional inactive service prior to the period covered by the DD form 214.  As a result, it must again be presumed that any inactive military service the applicant is requesting to be added to Item 12e of his DD Form 214 for the period ending
4 November 1994 was completed subsequent to the ending period of this form.

6.  In view of the fact that the awards, military education, and service performed that is outlined in paragraphs 4, 5 and 6 above were apparently received and/or completed subsequent to the period covered by the DD Form 214 in question, 
there are no regulatory provisions that allow for altering or correcting the 
DD Form 214 to add these items.  As a result, it would not be appropriate to grant the relief requested on these matters beyond that already outlined in paragraph 1 above.  

7.  The applicant's contention that the RE code listed on his DD Form 214 should be changed to RE-1 was also carefully considered.  However, by regulation,
RE-3 is the proper code to assign members separated under the provisions of paragraph 14-12c, Army Regulation 635-200, by reason of misconduct (commission of a serious offense) who are assigned an SPD code of JKQ.  The evidence of record confirms the applicant was discharged under these provisions and that he was properly assigned an RE-3 code based on the authority and reason for his discharge.  

8.  By regulation, RA enlistment eligibility will be based on the last discharge or separation.  If the last period of service was performed in a RC, qualification will be based on that separation/discharge.  The evidence of record confirms the applicant served in the ARNG from 1 February 2003 through 31 January 2005, at which time he was honorably discharged by reason of completion of required service and assigned an RE code of RE-1.  As a result, it appears he is eligible to enlist in the RA based on that last RE code.  Therefore, the applicant is advised to consult with a Service recruiter for information on reentering military service. 

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:

   a.  deleting from item 13 of the applicant's DD Form 214 the Kuwait Liberation Medal;
   
   b.  adding to item 13 of the applicant's DD Form 214 the Kuwait Liberation Medal-Saudi Arabia, Kuwait Liberation Medal-Kuwait, and the Parachutist Badge; and
   
   c.  providing him a correction to his DD Form 214 that includes these awards.

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 correcting his DD Form 214 for the period ending 4 November 1994 by:

   a.  adding to item 12 an additional 2 years of inactive service time;
   b.  adding to item 13 an additional NDSM, the Overseas Service Bar, and the Secretary of Defense Medal for the Defense of Freedom;
   
   c.  adding to item 14 completion of the 19K course; and
   
   d.  deleting from item 27 the RE-3 entry and replacing it with an RE-1 entry.



      __________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)                                         AR20090000425



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ABCMR Record of Proceedings (cont)                                         AR20090000425



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