IN THE CASE OF:	

		BOARD DATE:	      25 AUGUST 2009

		DOCKET NUMBER:  AR20090004670 


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 that his period of service covered by the 26 April 1991 DD Form 214 (Certificate of Release or Discharge from Active Duty) be characterized as honorable.

2.  The applicant states he was injured during Operation Desert Shield/Desert Storm and returned to Fort Stewart for care.  While assigned to Delta Company he was being pressured to push his rehabilitation so that he could be returned to Southwest Asia.  He was involved in a verbal altercation and requested to be released.  He has obtained two associate degrees and is working toward a bachelor’s degree in criminal justice.  His service was honorable.

3.  The applicant provides copies of his 1991 DD Form 214, a DD Form 215 (Correction to the DD Form 214), and a Department of Veterans Affairs (VA) Patient Data Card.

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 enlisted in the U.S. Army Reserve (USAR) and completed his initial active duty for training (IADT) from 26 July 1989 through 30 November 1989.  He was awarded the military occupational specialty (MOS) 88M (Motor Transport Operator) and returned to his USAR Troop Program Unit.

3.  The applicant enlisted in the Regular Army on 17 October 1990.  He completed a DD Form 4 (Enlistment/Reenlistment Document) which failed to list his prior USAR service but does show he enlisted in the same MOS as assigned in the USAR.

4.  The applicant was deployed Southwest Asia in support of Operation Desert Shield/Desert Storm with a reporting date of on or about 27 October 1990.  The specific unit and location is not of record.

5.  On 7 January 1991 the applicant tore the anterior cruciate ligament and medial meniscus in his left knee while serving in Saudi Arabia.  The injury was found to be in the line of duty.  He is shown to have been returned to the States following the injury and assigned to Fort Stewart on 21 January 1991. 

6.  The record contains five negative counseling statements in February 1991 for failure to report to his assigned duty station (either morning muster or physical fitness training) and one for disobeying a superior commissioned officer to properly sign in and out for appointments.

7.  The applicant received nonjudicial punishment under Article 15, Uniform Code of Military Justice, on 22 February 1991 for failure to go to his appointed place of duty.

8.  The applicant was processed for separation under Army Regulation 635-200, Chapter 11, Entry Level Performance and Conduct.

9.  The applicant was discharged on 26 April 1991 with 6 months and 10 days of creditable service for this period; 4 months and 5 days of prior active duty; and 1 year, 6 months, and 2 days of prior inactive service.  He was given an entry level separation with uncharacterized service.

10.  The applicant was awarded the National Defense Service Medal, the Southwest Asia Service Medal with two bronze service stars, the Kuwait Liberation Medal, the Army Service Ribbon, the Expert Marksmanship Qualification Badge with Grenade Bar, and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar.

11.  The VA has awarded the applicant a disability evaluation for the residuals of his knee injury.

12.  On 13 December 1996, the Army Discharge Review Board (ADRB) denied the applicant's request to change his uncharacterized entry level separation. 

13.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) currently provides the following:

	a.  a Soldier with less than 181 days of continuous active military service may be issued an entry-level-status separation with uncharacterized service; and

	b.  a Soldier who has less than 181 days of continuous active military service, but has completed initial entry training, been awarded an MOS, and has reported for duty at a follow-on unit of assignment he cannot be separated with uncharacterized service.  This criterion was not in effect at the time of the applicant's separation.

14.  Title 10 U. S. Code section 1552 states the Secretary of a military department may correct any military record of the Secretary’s department when the Secretary considers it necessary to correct an error or remove an injustice.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states he was injured during Operation Desert Shield/Desert Storm and returned to Fort Stewart for care.  While assigned to Delta Company he was being pressured to push his rehabilitation so that he could be returned to Southwest Asia.  He was involved in a verbal altercation and requested to be released.  His service was honorable.

2.  The applicant had prior USAR service, had completed his initial entry training, and was awarded an MOS.  He had not only reported for duty at a follow-on unit of assignment but had served in a war zone before being injured in the line of duty.  He was actually on his second assignment.  His command improperly discharged him under the provisions of Army Regulation 635-200, Chapter 11 with an uncharacterized description of service.  A Soldier who has completed more than 181 days of continuous active military service and has completed initial entry training, been awarded an MOS, and has reported for duty at a follow-on unit of assignment cannot be separated with uncharacterized service.

3.  As a matter of equity and under current standards, it would be appropriate to show the applicant was discharged under Secretarial Authority with an honorable characterization of service.

BOARD VOTE:

___X_____  ___X____  ____X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing the applicant was discharged on 26 April 1991 under Secretarial Authority with an honorable characterization of service.




      _______ _   _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)                                         AR20090004670



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ABCMR Record of Proceedings (cont)                                         AR20090004670



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