IN THE CASE OF:	

		BOARD DATE:	  18 January 2011

		DOCKET NUMBER:  AR20100019261 


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 to fully honorable. He also requests correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to list his combat awards. 

2.  The applicant states it has been over 15 years since he was discharged.  He needs help to improve his eligibility for benefits.  He adds that he is a Gulf War veteran.  He served from Operation Desert Shield to Operation Desert Storm and stayed back in Kuwait for 6 months to perform security and peacekeeping.  He received several medals and awards which are not listed on his DD Form 214.

3.  The applicant provides a certificate of achievement.

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 on 14 November 1989 and held military occupational specialty 13B (Cannon Crewmember).  The highest rank/grade he attained during his military service was private first class/E-3.  

3.  His records also show he served in Germany from 28 March 1990 to 17 June 1992.  He was assigned to C Battery, 2nd Battalion, 3rd Field Artillery Regiment.

4.  His records also show he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

* On 26 June 1990, for failing to go at the time prescribed to his appointed place of duty
* On 15 August 1990, for failing to go at the time prescribed to his appointed place of duty
* On 28 December 1990, for failing to go at the time prescribed to his appointed place of duty, disobeying a lawful order, and assault

5.  On 2 December 1991, he was cited for driving a passenger car while drunk and causing said car to hit another vehicle.  He subsequently accepted NJP on 7 February 1992 for this offense that led to his reduction in grade, a suspended forfeiture of pay, restriction, and extra duty.

6.  On 20 May 1992, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him in accordance with paragraph 14-12c of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) for misconduct - commission of a serious offense.  The immediate commander also notified him that he intended to recommend his service be characterized as under honorable conditions (general).

7.  On 20 May 1992, he acknowledged receipt of the commander's intent to separate him and subsequently consulted with legal counsel, and he was advised of the basis for the contemplated separation for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He elected not to submit a statement in his own behalf.  He further indicated that he understood that he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him and that he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of an under other than honorable conditions discharge.

8.  On 20 May 1982, his immediate commander initiated separation action against him in accordance with paragraph 14-12c of Army Regulation 635-200 for misconduct - commission of a serious offense.  Sub-paragraph v of this separation memorandum listed the applicant's awards as the Army Service Ribbon, National Defense Service Medal, and Southwest Asia Service Medal with two bronze service stars. 

9.  On 21 May 1992, his intermediate commander recommended approval of the applicant's discharge with an under honorable conditions and on the same date, a military attorney reviewed the separation packet and determined it was legally sufficient. 

10.  Subsequent to this legal review, the separation authority approved the applicant's discharge under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct - commission of a serious offense and directed his service be characterized as under honorable conditions and he be issued a General Discharge Certificate.  On 19 June 1992, the applicant was accordingly discharged.

11.  The DD Form 214 he was issued confirms he was discharged under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct - commission of a serious offense with a character of service of under other than honorable conditions.  This form further confirms he had completed a total of 2 years, 7 months, and 16 days of creditable active military service.  Additionally, this form shows the following entries:

	a.  Item 12f (Foreign Service) shows he completed 2 years, 2 months, and 21 days of foreign service.

	b. Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) shows the National Defense Service Medal, Army Service Ribbon, Expert Marksmanship Qualification Badge with Grenade Bar, and Marksman Marksmanship Qualification Badge with Rifle Bar (M-16).

	c.  Item 18 (Remarks) does not list service in Southwest Asia. 

12.  The applicant's name is shown on the Gulf War Roster as having served in Southwest Asia from 1 January 1991 to 15 June 1991.

13.  There is no indication in his records he petitioned the Army Discharge Review Board for an upgrade of his discharge within that Board's 15-year statute of limitations. 

14.  He submitted a certificate of commendation, issued by VII Corps, Saudi Arabia, that shows he served with distinction with VII Corps among the coalition forces fighting for the liberation of Kuwait.

15.  Army Regulation 600-8-22 (Military Awards) states the Southwest Asia Service Medal is awarded to members of the Armed Forces of the United States who participated in Operations Desert Shield/Desert Storm in the designated area on or after 2 August 1990 to 30 November 1995.  A bronze service star is authorized for wear with this medal for participation in each credited campaign.  Approved designated campaigns are:

* Defense of Saudi Arabia (2 August 1990 to 16 January 1991)
* Liberation and Defense of Kuwait (17 January to 11 April 1991) 
* Cease-Fire Campaign (12 April 1991 to 30 November 1995)

16.  Army Regulation 600-8-22 provides for awards of the Kuwait Liberation Medal (Saudi Arabia) and the Kuwait Liberation Medal (Kuwait).  The Kuwait Liberation Medal (Saudi Arabia), 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.  The Kuwait Liberation Medal (Kuwait), awarded by the Government of Kuwait 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.

17.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  The purpose of the separation document is to provide the individual with documentary evidence of his or her military service.  Chapter 2 of the regulation currently in effect states for an active duty Soldier deployed with his or her unit during their continuous period of active service, the statement "SERVICE IN (Name of Country Deployed) FROM (inclusive dates for example, YYYYMMDD-YYYYMMDD)" will be entered in item 18.

18.  Army Regulation 635-200 set forth the basic authority for the separation of enlisted personnel.  Chapter 14 of the regulation in effect at the time established policy and prescribed procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

19.  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.

DISCUSSION AND CONCLUSIONS:

1.  With respect to his service in Southwest Asia, he contends that he served from Desert Shield to Desert Storm and stayed back in Kuwait for 6 months but did not list exact or approximate dates of service.  His name is shown on the Gulf War Roster as having served in Southwest Asia from 1 January 1991 to 15 June 1991, a period that is less than 6 months and is inconsistent with his contention.  In the absence of additional documentary evidence that shows the date of arrival to and departure from Saudi Arabia/Kuwait, there is insufficient evidence to list his service in Southwest Asia on his DD Form 214.

2.  Nevertheless, the certificate he provides and the indication in the commander's separation memorandum that he was previously awarded the Southwest Asia Service Medal clearly show he served in Southwest Asia.  He is therefore, at least entitled to correction of his DD Form 214 to show the Southwest Asia Service Medal with two bronze service stars.

3.  Additionally, although his exact dates of service in Southwest Asia cannot be determined, having received credit for participating in two campaigns during his service in Southwest Asia indicates he served a qualifying period for award of the Kuwait Liberation Medal (Saudi Arabia) and the Kuwait Liberation Medal (Kuwait).  Therefore, he is entitled to correction of his DD Form 214 to show both awards. 

4.  With respect to his character of service, the evidence of record shows the applicant committed a serious offense by operating a vehicle while drunk. Accordingly, his chain of command initiated separation action against him.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  


5.  His discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  Based on his record of indiscipline, the applicant's service clearly does not merit an upgrade to his discharge.  Therefore, he is not entitled to the requested relief.

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 adding to item 13 of his DD Form 214 the:

* Southwest Asia Service Medal with two bronze service stars
* Kuwait Liberation Medal (Saudi Arabia)
* Kuwait Liberation Medal (Kuwait)

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 an upgrade of his 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)                                         AR20100019261



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ABCMR Record of Proceedings (cont)                                         AR20100019261



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