BOARD DATE:	  22 September 2009

		DOCKET NUMBER:  AR20090005631 


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 his under other than honorable conditions (UOTHC) discharge be changed to a medical discharge; and that awards he is eligible for based on his service in Southwest Asia (SWA) in support of Operation Desert Shield/Storm be added to his record.  

2.  The applicant states, in effect, that at the time of his discharge he was mentally and emotionally unstable; however, he did not go before a medical evaluation board (MEB).  He further states that he should receive the awards he is due based on his service in the Persian Gulf in support of Operation Desert Shield/Storm. 

3.  The applicant provides the following documents in support of his application:  DD Forms 214 (Certificate of Release or Discharge from Active Duty); DA Form 3647 (Inpatient Treatment Record Cover Sheet); SF 504 (Clinical Record); 
SF 506 (Physical Examination); DA Form 4700 (Medical Record Supplemental Medical Data); SF Form 558 (Emergency Care and Treatment); WAMC Form 1389 (Patient Care Report Womack Emergency Medical Service); SF Form 509 (Progress Notes); DA Form 3888 (Medical Record-Nursing History and Assessment); SF 510 (Nursing Notes); SF 552 (Request for Administration of Anesthesia and for Performance of Operations and Other Procedures); DA Form 4256 (Clinical Records-Doctors Orders); DA Form 4678 (Therapeutic Documentation Care Plan); Lab Results; Progress Notes; VA Form 10-10 (Medical 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.  The applicant’s records show he enlisted in the Regular Army and entered active duty on 31 July 1990.  He was trained in and awarded military occupational specialty (MOS) 13B (Cannon Crewmember).  His record 
also shows the highest rank he attained while serving on active duty was 
specialist/E-4 (SPC/E-4). 

3.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows, in Item 9 (Awards and Decorations), that he earned the Army Service Ribbon, National Defense Service Medal, and Army Achievement Medal during his tenure on active duty.

4.  On 30 November 1993, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for violating Article 86 of the Uniform Code of Military Justice (UCMJ) by being absent without leave (AWOL) from on or about 16 August through on or about 9 December 1993.

5.  On 13 December 1993, the applicant completed a Medical Examination for Separation Memorandum in which he indicated that he did not desire a separation medical examination.  There are no medical documents or treatment records on file that indicate the applicant suffered from a disabling physical or mental condition that would have supported his processing through medical channels at the time.  

6.  On 16 December 1993, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the effects of an UOTHC discharge, and of the rights available to him.  Subsequent to receiving this legal counsel the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.


7.  In his request for discharge, the applicant acknowledged that he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He further indicated that he understood that he could encounter substantial prejudice in civilian life by reason of an UOTHC discharge and he elected not to submit a statement in his own behalf.

8.  On 31 January 1994, the separation authority approved the applicant’s request for discharge and directed that he receive an UOTHC discharge.  On 
22 February 1994, the applicant was discharged accordingly.  

9.  The DD Form 214 he was issued shows he was administratively separated under the provisions of Chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in lieu of trial by court-martial with an UOTHC discharge.  It further shows at the time he had completed 3 years, 2 months and 29 days of creditable active service and he had accrued 116 days of time lost due to being AWOL.  

10.  Item 12f (Foreign Service) of the applicant's DD Form 214 contains the entry "00 00 00," which indicates he completed no overseas service during the period covered by the DD Form 214.

11.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 shows he earned the following awards:  Army Service Ribbon, National Defense Service Medal, Army Achievement Medal, Marksman Marksmanship Qualification Badge with Rifle 
Bar and Expert Marksmanship Qualification Badge with Hand Grenade Bar.

12.  A review of the Defense Finance and Accounting Service (DFAS) pay record confirms the applicant received Hostile Fire Pay/Imminent Danger Pay (HFP/IDP) for serving in Southwest Asia (SWA), in Iraq, in support of Operation Desert Storm/Shield during the period 19 September 1990 through 12 April 1991.

13.  The applicant provides medical documentation covering the period between July 92 and May 1998.  These documents show that the applicant suffered from seizure disorder since 1991, that he was placed on Dilantin, and that on several occasions he stopped taking his medication resulting in multiple seizures.  

14.  There is no evidence showing the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations.
15.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), then in effect, established the Army Physical Disability Evaluation System (PDES) and set forth policies, responsibilities, and procedures that applied in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  

16.  Chapter 3 of the same regulation provides guidance on presumptions of fitness.  It states that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.  Separation by reason of disability requires processing through the PDES.  

17.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards.  Paragraph 2-14 states, in pertinent part, that the South West Asia Service Medal (SWASM) is awarded to all members of the Armed Forces credited with serving in SWA and contiguous waters as well as the total land areas of Iraq, Kuwait, and Saudi Arabia on or after 2 August 1990 through 30 November 1995, in support of the Persian Gulf War during Operation Desert Shield/Desert Storm.  It also stipulates that a bronze service star is authorized for wear with the SWASM for each campaign a member is credited with participating in while serving in SWA in support of the Persian Gulf War during Operations Desert Shield/Desert Storm.  
20.  Table B-1 of the awards regulation contains a list of campaigns and shows that during the applicant's tenure of assignment in SWA, participation credit was granted for the Defense of Saudi Arabia (2 August 1990 – 16 January 1991) Liberation and Defense of Kuwait (17 January 1991- 11 April 1991), and SWA Cease Fire (12 April 1991 – 30 November 1995) campaigns.

18.  Paragraph 9-14 of the awards regulation contains guidance on award of the Kuwait Liberation Medal-Saudi Arabia (KLM-SA).  It states, in pertinent part, that it is awarded to members who participated in Operation Desert Storm/Desert Shield in designated areas of operations to include Iraq, Kuwait, and Saudi Arabia between 17 January 1991 and 28 February 1991.  Paragraph 9-15 contains guidance on award of the Kuwait Liberation Medal-Kuwait (KLM-KU) and states, in pertinent part, that it is awarded to members who served in support of Operations Desert Shield and Desert Storm between 2 August 1990 and 
31 August 1993, in designated areas to include Iraq, Kuwait, or Saudi Arabia. 


19.  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 preparation instructions for the DD Form 214.  The instructions for Item 12f state that all overseas service completed during the period covered by the DD Form 214 will be entered.  The instructions for item 13 state, in pertinent part, to list all awards and decorations for all periods of service.  The instructions for item 18 (remarks) state, in pertinent part, that for active duty Soldiers deployed with his unit, enter the statement "SERVICE IN (NAME OF COUNTRY DEPLOYED) FROM (inclusive dates for example, YYYYMMDD - YYYYMMDD).

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he was mentally and emotionally disturbed and therefore should have been referred to the PDES instead of being discharged under the provisions of chapter 10 was carefully considered.  However, there is insufficient evidence to support this claim.  

2.  The medical conditions documented in the treatment records provided by the applicant fail to show they were sufficiently disabling to render him unfit for further service.  By regulation, the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.  The applicant’s military medical record provides no indication that he suffered from a physical or mental condition that rendered him unfit to perform his military duties, or that would have warranted his processing through the Army’s PDES at the time of his discharge. 

3.  The evidence of record confirms the applicant was processed for separation in lieu of trial by court-martial at his own request, in order to avoid a trial by 
court-martial that could have resulted in him receiving a punitive discharge.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

4.  The applicant's contention of entitlement to awards for his service in the Persian Gulf in support of Operation Desert Storm/Shield was carefully considered and found to have merit.  The evidence of record confirms the applicant served in SWA in support of Operation Desert Shield/Storm from 
19 September 1990 through 12 April 1991, as evidenced by the Operation Desert Shield/Storm Personnel Roster.  
5.  The record further confirms that based on the applicant's service in SWA, he is eligible for the SWASM with 3 bronze service stars, KLM-SA and KLM-KU.  Therefore, it would be appropriate to add these awards to his record and DD Form 214 at this time.

6.  Although not requested by the applicant, during the review of this case it was determined that item 12f of is DD Form 214 did not reflect his foreign service in SWA and there was no entry in item 18 documenting this deployed service.  As a result, it would be appropriate to add the entry "00 06 23" to item 12f and the entry "SERVICE IN SOUTHWEST ASIA FROM 900919-910412" to item 18.

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 
amending his DD Form 214 as follows:  Item 13- add the Southwest Asia Service Medal with 3 bronze service stars, Kuwait Liberation Medal-Saudi Arabia and Kuwait Liberation Medal-Kuwait; and Item 18-add the entry "SERVICE IN SOUTHWEST ASIA FROM 900919-910412."

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 granting a medical discharge. 




      _______ _   _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)                                         AR20090005631



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ABCMR Record of Proceedings (cont)                                         AR20090005631


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