IN THE CASE OF:	  

		BOARD DATE:	    8 March 2011

		DOCKET NUMBER:  AR20100021885 


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 correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) as follows:

* Items 4a (Grade, Rate, or Rank) and 4b (Pay Grade) to show his rank/grade as private (PV2)/E-2
* Item 12f (Foreign Service) to show his service in Southwest Asia

2.  The applicant states his DD Form 214 contains administrative errors.

3.  The applicant provides:

* his DD Form 214
* his DD Form 4 (Enlistment/Reenlistment Document - Armed Forces of the United States)
* his DA Form 2A (Personnel Qualification Record - Part I)
* page 2 of a 4-page DA Form 2-1 (Personnel Qualification Record - Part II)

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 enlisted in the Regular Army in the rank/grade of private (PV1)/E-1 on 22 August 1990 for a period of 2 years and 15 weeks.  Section IV (Remarks) of his DD Form 1966/4 (Record of Military Processing) shows he was authorized the rank of private (PV2)/E-2 in accordance with Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program), Table 2-3, Rule (undetermined/illegible).

3.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 12B (Combat Engineer).  Orders 311-222, issued by the U.S. Army Engineer Center, Fort Leonard Wood, MO, dated 7 November 1990, awarding him MOS 12B listed his rank as a PV1.

4.  Subsequent to completion of MOS training, he was assigned to Company C, 1st Engineer Battalion, Fort Riley, KS, on or about 26 December 1990.  

5.  His name is shown on the Gulf War Roster as having served in Saudi Arabia from 25 December 1990 to 1 May 1991.  His unit of assignment is shown as
B Company, 1st Engineer Battalion.

6.  An official at the Defense Finance and Accounting Service (DFAS) was unable to confirm if the applicant received hostile fire /imminent danger pay (HF/IDP) or combat zone tax exclusion (CZTE) from December 1990 to May 1991 for his service in Southwest Asia.

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

* On 18 July 1991, for being absent from formation (his rank is shown as PVT)
* On 10 September 1991, for operating a passenger car while drunk (his rank is shown as PV1)

8.  On 17 September 1991, the applicant's immediate commander initiated a DA Form 4126-R (Bar to Reenlistment Certificate) against him citing his prior NJP.  This form shows his rank as a PVT.  The Bar to Reenlistment Certificate was ultimately approved by the approval authority on 26 September 1991.  The applicant acknowledged receipt of the approved bar on 2 October 1991 and elected not to appeal the action.

9.  His record shows he accepted an additional NJP under the provisions of Article 15 of the UCMJ on 11 October 1991, for failing to go at the time prescribed to his appointed place of duty (his rank is shown as PV1)

10.  On 8 December 1991, having declared the applicant as an Army Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) failure, the applicant’s immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 9, for ADAPCP failure.  

11.  On 20 January 1992, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-200, chapter 9, and directed the issuance of a General Discharge Certificate.  The applicant was accordingly discharged on 29 January 1992.  The DD Form 214 he was issued confirms he was discharged with a characterization of service of under honorable conditions (general).  This form further confirms he completed 1 year, 5 months, and 8 days of creditable military service.  Additionally, this form shows in:

* Items 4a and 4b - "PV1" and "E-1" respectively
* Item 12f - "00  00  00"
* Item 18 (Remarks) - no service in a hostile fire/imminent danger pay area

12.  He submitted a DA Form 2A, dated 4 September 1991, that shows his grade as PV2 with a date of rank of 22 August 1990 and his last combat tour was in Saudi Arabia as of May 1991; and a DA Form 2-1, that shows in item 18 (Appointments and Reductions), the entry of PV2 with an effective date as
22 August 1990.

13.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  It states for:

* Items 4a and 4b, from the Soldier's record, enter the active duty rank and pay grade at the time of the Soldier's separation
* Item 12f, enter the total foreign service completed during the period covered by the DD Form 214
* Item 12h, from the most recent promotion order (or reduction instrument), enter the effective date of advancement/promotion to the current pay grade
* Item 18, for an active duty Soldier deployed with his or her unit during their continuous period of active service, enter the statement, "Service in (Name of County Deployed) from (YYYYMMDD-YYYYMMDD)"

14.  Army Regulation 601-210 governs eligibility criteria, policies, and procedures for enlistment and processing of persons into the Regular Army and the U.S. Army Reserve.  Table 2-3 of the regulation in effect at the time covered enlistment pay grades for personnel without prior service.  Various rules covered the entry grade of a non-prior service applicant. 

15.  Army Regulation 600-8-22 (Military Awards) states: 

	a.  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)

	b.  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.

	c.  The Kuwait Liberation Medal 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.

DISCUSSION AND CONCLUSIONS:

1.  With respect to his service in Saudi Arabia, the applicant's name is shown on the Gulf War Roster as having served in Southwest Asia from 25 December 1990 to 10 May 1991.  Although his pay records did not confirm this service, this period is consistent with the entry on his DA Form 2A.  Therefore, he is entitled to correction of his DD Form 214 to show he completed 4 months and 16 days of foreign service in Southwest Asia.
2.  Additionally, this period of service entitled him to award of the Southwest Asia Service Medal with three bronze service stars (to designate his participation in three campaigns), Kuwait Liberation Medal (Saudi Arabia), and the Kuwait Liberation Medal (Kuwait).  

3.  With respect to his E-2 grade, although his enlistment document listed Army Regulation 601-210, Table 2-3 as the authority for his enlistment entry grade as E-2, it is unclear what rule was used for this grade.  Additionally, most personnel documents in his service records show he served as a PVT or PV1/E-1 throughout his military service.  In the absence of additional documentary evidence that conclusively shows he was accessed as an E-2 or was advanced to E-2, there is insufficient evidence to show his grade as an E-2 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.  deleting from item 12h of his DD Form 214 the entry "00  00  00" and replacing it with the entry "00  04  15";

	b.  adding to item 13 of his DD Form 214 the Southwest Asia Service Medal with three bronze service stars, Kuwait Liberation Medal (Saudi Arabia), and the Kuwait Liberation Medal (Kuwait); and

	c.  adding to item 18 of his DD Form 214 the entry "Service in Southwest Asia from 19901225 - 19910510."

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 changing his rank/grade to PV2/E-2 on his DD Form 214.



      _________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)                                         AR20100021885



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ABCMR Record of Proceedings (cont)                                         AR20100021885



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