BOARD DATE:	  17 November 2009

		DOCKET NUMBER:  AR20090010097 


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, correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show all of his awards to include the Army Commendation Medal, to show his rank as specialist/pay grade E-4, to show the date of his expiration term of service (ETS), and to upgrade the characterization of his service to honorable.

2.  The applicant states that he was put out of the Army because his former spouse wrote worthless checks.  He contends that he was not separated for misconduct.

3.  The applicant provides no additional documents 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.  On 21 March 1989, the applicant enlisted in the Regular Army for 5 years with an ETS of 20 March 1994.  He completed his initial training and was awarded military occupational specialty 62B (Construction Equipment Repairer).

3.  On 25 August 1989, the applicant was assigned for duty as an engineer equipment repairer with the 326th Engineer Battalion located at Fort Campbell, Kentucky.

4.  The applicant served in Saudi Arabia in support of Operation Desert Shield/Storm during the period 15 September 1990 to 5 April 1991.

5.  On 1 July 1991, the applicant was promoted to specialist, pay grade E-4.

6.  On 17 December 1991, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for making a false statement with intent to deceive and for failure to obey a lawful order.  The punishment included reduction to pay grade E-3, a forfeiture of $229.00 pay per month for 1 month (suspended), and 14 days of extra duty.

7.  On 23 January 1992, the applicant was barred to reenlistment.  The commander cited his NJP and five counseling statements for misconduct that included misappropriation of government time, writing bad checks and refusing to make restitution, lying about his whereabouts, reporting to formation in the wrong uniform, and not being at his appointed place of duty.  The applicant did not make any statement in his own behalf and did not appeal the bar to reenlistment.

8.  On 11 May 1992, the applicant’s commander recommended separation from the service under the provisions of Army Regulation 635-200, chapter 14, for misconduct due to a pattern of misconduct.   The commander stated that the applicant had his post driving privileges revoked due to excess points, failed to report on 13 November 1991, made a false official statement on 14 November 1991, and disobeyed a lawful order on 25 February 1992.

9.  On 13 May 1992, the applicant consulted with counsel concerning his rights. He elected not to make a statement in his own behalf.

10.  On 18 May 1992, the appropriate authority approved the recommendation for discharge and directed that the applicant be issued a discharge under other than honorable conditions.

11.  Accordingly, on 27 May 1992, the applicant was discharged under honorable conditions.  He had completed 3 years, 2 months, and 7 days of creditable active service.
12.  The applicant's DD Form 214 shows:

	a.  in item 4a (Grade, Rate or Rank) - PFC [private first class];

   b.  in item 4b (Pay Grade) - E-3;

	c.  in item 12h (Effective Date of Pay Grade) - 17 December 1991;

	d.  in item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) - Army Service Ribbon, Marksman Marksmanship Qualification Badge with Rifle and Grenade Bars, National Defense Service Medal, Southwest Asia Service Medal with two bronze service stars, Kuwait Liberation Medal-Saudi Arabia, and the Air Assault Badge; and

	e.  in Item 28 (Narrative Reason for Separation) – misconduct - pattern of misconduct.

13.  Item 9 (Awards, Decorations and Campaigns) of the applicant's 
DA Form 2-1 (Personnel Qualification Record - Part II) list the same awards as shown on his DD Form 214.

14.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense that could result in a punitive discharge, convictions by civil authorities, desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

16.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

17.  The Kuwait Liberation Medal awarded by the Kingdom of Saudi Arabia 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.

18.  The Kuwait Liberation Medal awarded by the Government of Kuwait 
(KLM-KU) 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.

19.  Army Regulation 635-5 (Separation Documents) provides detailed instructions for completing separation documents, including the DD Form 214.  It does not provide for an entry of the Soldier's ETS date.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests, in effect, correction of DD Form 214 to show all of his awards to include the Army Commendation Medal, to show his rank as specialist/
pay grade E-4, to show the date of his ETS, and to upgrade the characterization of his service to honorable.

2.  The applicant contends, in effect, that this DD Form 214 should show his original ETS date.  However, as he did not serve until his ETS, there is no authorization for this entry on the DD Form 214.  Therefore, his request should be denied.

3.  The evidence of record shows that the applicant was reduced from specialist/
pay grade E-4 to private first class/pay grade E-3 effective 17 December 1991.  His DD Form 214 shows this rank and pay grade.  There is no evidence showing that he was subsequently promoted to a higher pay grade.  Therefore, his request to change his rank and pay grade should be denied.

4.  The evidence of record shows that the applicant committed a series of offenses during the last part of 1991 and early part of 1992 indicating a pattern of misconduct.

5.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

6.  The type of discharge directed and the reasons were therefore appropriate considering all of the facts of the case.



7.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge.

8.  The applicant contends that he was awarded the Army Commendation Medal.  However, there are no orders or other evidence on file in his official military personnel file that confirms award of this personal decoration.  Therefore, his request to correct his records to show award of the Army Commendation Medal should be denied.  However, should the applicant have or be able to obtain a copy of the orders awarding him the Army Commendation Medal or other corroborating evidence, he may submit another application for consideration.

9.  Records show that the applicant served during a qualifying period for award of the KLM-KU.  Therefore, his records should be corrected to show this award.

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 showing, in addition to the awards already shown on his DD Form 214, his authorized awards include the KLM-KU.



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 upgrading the characterization of his discharge, changing his rank or pay grade, and recording his ETS date.



      __________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)                                         AR20090010097



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ABCMR Record of Proceedings (cont)                                         AR20090010097



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