IN THE CASE OF:	  

		BOARD DATE:	  29 December 2010

		DOCKET NUMBER:  AR20100017103 


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 his service in Desert Storm and award of the Combat Infantryman Badge (CIB).

2.  The applicant states his DD Form 214 does not reflect that he was in combat or that he received a CIB.

3.  The applicant provides a self-authored statement and his DD Form 214. 

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 4 June 1985.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 11B (Infantryman).  The highest military rank/grade he held was corporal/E-4.  On 6 September 1985, he was assigned to the 4th Battalion, 23rd Infantry, Fort Lewis, WA.  

3.  The Gulf War Roster lists the applicant's name as having served in Southwest Asia (SWA) from 16 January 1991 to 26 March 1991.  However, his records contain a DA Form 1059 (Service School Academic Evaluation Report) showing he was assigned to the U.S. Army I Corps, Noncommissioned Officer (NCO) Academy, Fort Lewis, WA, from 8 January 1991 to 16 January 1991 while attending the Basic NCO Course.  This form shows the course duration was through 15 February 1991; however, the applicant was released early for academic reasons.

4.  Item 5 (Overseas Service) of his DA Form 2-1 (Personnel Qualification Record) contains an entry indicating he was on temporary duty (TDY) to Saudi Arabia from 26 February 1991.  However, the through date is void of any entry which would indicate the termination date of this TDY.  

5.  His record does not contain any orders to show he was ever deployed to SWA in support of Operation Desert Storm, that he was ever attached to another infantry division, or that he was ever on TDY during his active service.

6.  On 2 June 1992, he was honorably released from active duty and transferred to the U.S. Army Reserve Control Group (Reinforcement) to complete his remaining Reserve obligation.  The DD Form 214 he was issued shows he completed a total of 6 years, 11 months, and 29 days of creditable active service with 2 days of lost time.  This form also shows the following entries:

	a.  Item12f (Foreign Service) of his DD Form 214 shows "0 years, 0 months, and 0 days."

	b.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) shows the Army Service Ribbon, Army Lapel Button, National Defense Service Medal, Army Achievement Medal (3rd Oak Leaf Cluster), Army Good Conduct Medal, NCO Professional Development Ribbon, and Marksman Marksmanship Qualification Badge with Rifle Bar [M-16].

7.  His records do not contain permanent orders awarding him the CIB.

8.  In a self-authored statement to his Congresswoman, the applicant states, in pertinent part, he was attached to the 24th Infantry Division out of Fort Stewart, GA, during Operation Desert Storm.  He received the CIB and he has been trying to get orders for the badge and also get the badge.  He has been trying to get his DD Form 214 updated since 1992.  He is being told he did not serve in combat.  He knows there must be orders sending him there or other ways to show it.  He wants his DD Form 214 to reflect that he served in combat in 1991 and that he is entitled to a CIB.

9.  Army Regulation 635-5 (Personnel Separations - Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It states, in pertinent part, that for item 12f, enter the total amount of foreign service completed during the period covered by the DA form 214 and for item 18 enter the following “Service in (name of country deployed) from (inclusive dates for example, YYYYMMDD - YYYYMMDD).”

10.  Army Regulation 600-8-22 (Military Awards) states the CIB is awarded to infantry officers and to enlisted and warrant officer persons who have an infantry MOS.  They must have served in active ground combat while assigned or attached to an infantry unit of brigade, regimental or smaller size. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his DD Form 214 should be corrected to show his foreign service in Operation Desert Storm and award of the CIB. 

2.  With respect to his foreign service in Southwest Asia, the applicant's name is listed on the Gulf War Roster as having served in Southwest Asia from 16 January 1991 to 26 March 1991.  However, his DA Form 2-1 shows he served in Saudi Arabia from 26 February 1991 to an unknown date.  

3.  His service record does not contain sufficient evidence nor did he submit any evidence that conclusively shows the specific dates of service in Southwest Asia during Operation Desert Storm.  His DD Form 214 does not list any foreign service during his period of service nor does it list any of the awards a Soldier would be entitled to for service in SWA.  In the absence of additional documentary evidence that confirms his exacts dates of service in Southwest Asia, there is insufficient evidence to correct his records and show his combat service at this time. 

4.  With respect to the CIB, his records do not contain permanent orders awarding him the CIB.  Additionally, without any evidence that shows he was personally present and under hostile fire while assigned to an infantry unit actively engaged in ground combat with the enemy, there is insufficient evidence upon which to base award of the CIB in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__X____  __X_____  ___X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _ 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)                                         AR20100017103



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ABCMR Record of Proceedings (cont)                                         AR20100017103



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