IN THE CASE OF:	  

		BOARD DATE:	  10 June 2010

		DOCKET NUMBER:  AR20090016658 


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 an upgrade of his general discharge (GD), under honorable conditions to an honorable discharge (HD).  He also asks correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show all of the awards he is authorized, his overseas service, and last unit of assignment.

2.  The applicant states the following:

   a.  he served in Saudi Arabia from 29 November 1990 to 22 May 1991 and not from 17 February to 7 April 1991 (1 month and 20 days), as currently reflected on his DD Form 214;

   b.  the military was still processing his awards at the time of his discharge;

   c.  he earned the Army Commendation Medal (ARCOM) with silver cluster for his service on three funeral details;

   d.  his DD Form 214 should be corrected to show additional awards, commemorative medals, identification tags, ribbons, badges, and accoutrements that are not currently reflected;

   e.  he was assigned to Battery B, 5th Battalion (Bn), 62nd Air Defense Artillery (ADA) on 2 December 1990;

   
f.  an HD would increase his self esteem and look better to his fellow veterans, family, and society; and
   
   g.  an HD would allow him to return to the military with a waiver.

3.  The applicant provides a self-authored statement 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 he enlisted in the Regular Army on 29 August 1990.  He was awarded and served in military occupational specialty (MOS) 16S (Man Portable Air Defense Systems Crewmember).

3.  Item 5 (Overseas Service) of the applicant’s DA Form 2-1 (Personnel Qualification Record) shows he performed 2 months of temporary duty in Saudi Arabia from 17 February to 7 April 1991.  Item 35 (Record of Assignments) shows that he was assigned to Battery (Btry) B, 5th Bn, 62nd ADA, Fort Bliss, Texas on 8 April 1991 and this was the last unit to which he was assigned.

4.  The applicant’s military record shows he was counseled sixteen times between 23 May and 26 November 1991 for a myriad of disciplinary infractions that included:

* failure to shave
* failure to repair
* his personal hygiene and appearance
* smoking in formation 
* loss of Government property
* low aptitude scores
* violation of the commander’s physical security policy 
* disregarding an order 
* failing an inspection 
* violating Article 86 of the Uniform Code of Military Justice (UCMJ) by
   being absent without leave (AWOL)
* missing formation
* driving without a license and insurance

5.  On 13 November 1991, the applicant underwent a mental status evaluation.  The applicant's behavior was normal.  He was fully alert and oriented and displayed an unremarkable mood.  His thinking was clear, his thought content normal and his memory good.  There was no significant mental illness.  The applicant was mentally responsible.  He had the mental capacity to understand and to participate in the separation process.

6.  On 15 January 1992, the unit commander notified the applicant that he intended to initiate action to separate the applicant under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13, by reason of unsatisfactory performance.  He cited the applicant’s consistent failure to be at his appointed place of duty, failure to maintain the minimum standards, and several security violations as the basis for the separation action.

7.  On 16 January 1992, the applicant completed an election of rights in which he acknowledged he was not entitled to have his case considered by an administrative separation board because he had less than 6 years of total active and Reserve service and he elected not to submit a statement in his own behalf. He also acknowledged his understanding that he could apply to the Army Discharge Review Board (ADRB) or the ABCMR for an upgrade of his discharge; however, he realized that an act of consideration by either board does not imply that his discharge would be upgraded. 

8.  On 11 February 1992, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 13, by reason of unsatisfactory performance and directed that the applicant be issued a GD under honorable conditions.  

9.  Headquarters U. S. Army ADA Center and Fort Bliss, Orders Number 35-10, dated 21 February 1992, directed that the applicant be discharged from active duty effective 27 February 1992.  This order also shows the applicant was assigned to Btry B, 5th Bn, 62nd ADA, 11th Brigade (Bde) at that time.

10.  On 27 February 1992, the applicant was discharged accordingly after completing 1 year, 6 months, and 29 days of creditable active military service.  His DD Form 214 shows in:

   a.  Item 8a (Last Duty Assignment and Major Command) B Btry, 5th Bn 62nd ADA, 11th Bde (FC);

   b.  Item 12f (Foreign Service) 00 years, 1 month, and 20 days;

   c.  Item 13 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) - Army Service Ribbon, Marksman Marksmanship Qualification Badge with M16 Rifle Bar, Southwest Asia Service Medal with one bronze service star, and Kuwait Liberation Medal; and

   d.  Item 18 (Remarks) – Service in Southwest Asia:  910217 – 910407.

11.  The applicant’s Official Military Personnel File (OMPF) contains no orders or any other documents to show he was recommended for or awarded the ARCOM or any other awards, medals, or badges during his tenure on active duty.

12.  A review of the Gulf War Deployment Roster shows the applicant served in the Gulf War area of operations during the period 17 February to 18 March 1991.

13.  A review of the applicant's Defense Finance Accounting Service (DFAS) pay record confirms he received imminent danger pay/hostile fire pay (IDP/HFP) for serving in a combat zone during the period 22 February through 17 March 1991.

14.  There is no indication that the applicant applied to the ADRB for an upgrade of his discharge within that board's 15-year statute of limitations.

15.  Army Regulation 635-5 (Separations Document) 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.  The preparation instructions states to enter the following entries in:

   a.  Item 8a – enter the last unit of assignment, or major command with the corresponding two character assignment code;

   b.  Item 12f – enter the total amount of foreign service completed during the period covered by the DD Form 214; and
   
   c.  Item 13 – list all awards and decorations for all periods of service in the priority sequence.

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-7a of Army Regulation 635-200 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

17.  Chapter 13 of the same regulation contains the policy and outlines the procedures for separating individuals for unsatisfactory performance, and provides, in pertinent part, that commanders will separate a member under this chapter when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.  The service of Soldiers separated because of unsatisfactory performance will be characterized as honorable or under honorable conditions as warranted by their military records.

18.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards.  It provides guidance on award of the SWASM.  It states, in pertinent part, that it is awarded to members for service in SWA in support of the Persian Gulf War during Operations Desert Shield/Desert Storm on or after 2 August 1990.  A bronze service star is authorized for campaigns a member participated in while serving in SWA.  During the applicant’s tenure of assignment, credit was granted for participation in the Liberation and Defense of Kuwait campaign.

19.  Army Regulation 600-8-22 (Military Awards) prescribes the Army's awards policy.  Paragraph 9-14 contains guidance on the KLM-SA.  It states it is authorized to members for service in Operation Desert Storm in SWA between 17 January 1991 and 28 February 1991.

20.  Paragraph 9-15 of the awards regulation contains guidance on the Kuwait Liberation Medal-Kuwait (KLM-KU).  It states it is authorized for service in support of Operation Desert Shield/Desert Storm in SWA between 2 August 1990 and 31 August 1993.


21.  Title 32, Code of Federal Regulations, Part 578 lists and discusses all official U.S. military decorations, medals, ribbons, and similar devices; commemorative medals are not listed as official.  Some commemorative medals are authorized by the U.S. Congress and are minted by the U.S. Mint.  However, Army Regulation 670-1 (Wear and Appearance of Army Uniforms and Insignia) prohibits the wearing of commemorative medals.  In addition, award of these medals is not governed by the provisions of Army Regulation 600-8-22 (Military Awards) and, as a result, they may not be shown on a DD Form 214.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his GD should be upgraded to an HD and his DD Form 214 should be corrected to show all awards, overseas service, and last unit of assignment have been carefully considered.  There is sufficient evidence to support granting a portion of the requested relief in this case.

2.  By regulation, the KLM-SA is authorized for service in SWA between
17 January 1991 and 28 February 1991; and the KLM-KU is authorized for service in SWA between 2 August 1990 and 31 August 1993.

3.  The evidence of record confirms the applicant served in SWA from 2 January 1991 to 5 May 1991, and his DD Form 214 currently lists the KLM for this service.  Based on the applicant’s service in SWA, he is eligible for the KLM-SA and KLM-KU and they should be added to his record and DD Form 214.

4.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

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

6.  The applicant has not provided any evidence or sufficiently mitigating argument to warrant an upgrade of his discharge.

7.  The evidence of record confirms the applicant was last assigned to Btry B, 5th Bn, 62nd ADA, 11th Bde as evidenced by his DA Form 2-1 and his separation order.  Therefore, there is no basis for granting this portion of the requested relief.


8.  The applicant’s DA Form 2-1 shows he performed temporary duty in Saudi Arabia from 17 February to 7 April 1991.  The Gulf War Deployment Roster shows the applicant served in the Gulf War area of operations from 17 February to 18 March 1991 and DFAS pay record confirms he received IDP/HFP from 
22 February through 17 March 1991.  Therefore, the evidence is sufficient to believe the applicant's foreign service is correct as it is shown in item 12f on 
DD Form 214.  The dates are the same as those shown on his DA Form 2-1.  There is no evidence that he served in Saudi Arabia from November 1990 to May 1991.

9.  The available evidence fails to include any orders or recommendations to corroborate the applicant’s claim of entitlement to the ARCOM, additional awards, medals, ribbons, and badges, other than those currently reflected on his 
DD Form 214.

10.  By law, most commemorative medals are not officially recognized awards authorized by Department of the Army.  Therefore, there is no basis for these decorations to be issued or added to his DD Form 214.

11.  The applicant is further informed that accoutrements such as insignia, name plates, and other personal identifiable information such as blood type, allergies, and identification tags are not valid entries to be listed on the DD Form 214.

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.  amending item 13 of his DD Form 214 by deleting the Kuwait Liberation Medal; and adding the Kuwait Liberation Medal-Saudi Arabia and the Kuwait Liberation Medal-Kuwait; and
   
	b.  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 his general, under honorable conditions discharge, additional awards, overseas service, and last unit of assignment.




      _______ _   _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)                                         AR20090016658



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ABCMR Record of Proceedings (cont)                                         AR20090016658



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