IN THE CASE OF:	  

		BOARD DATE:	  29 March 2011

		DOCKET NUMBER:  AR20100022193 


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 two applications, correction of:

* item 12c (Net Active Service This Period) of his DD Form 214 (Certificate of Release or Discharge from Active Duty for the period ending
26 July 1990 to show he completed 2 years of service
* item 13 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 for the period ending 18 March 1991 to add the Kuwait Liberation Medal
* item 18 (Remarks) of his DD Form 214 for the period ending 18 March 1991 to show his deployment in Southwest Asia

2.  The applicant states:

* he served 2 years of continuous service in the Army
* his DD Form 214 for the period ending 26 July 1990 needs to be amended to give him 2 additional days
* he signed for 2 years in the Army in 1988 and should be given credit for this
* his unit made a mistake by not crediting him with his whole time in service
* he cannot receive health benefits unless this injustice is rectified
* his dates of deployment in Saudi Arabia, Kuwait, and Iraq are not listed on his DD Form 214 for the period ending 18 March 1991
* he needs his Kuwait Liberation Medal


3.  The applicant provides:

* two applications to this Board
* his DD Forms 214 for the period ending 26 July 1990 and 18 March 1991 

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 (RA) on 29 July 1988 for a period of 2 years.  Orders 72-3, issued by the 258th Personnel Service Center, Wuerzburg, dated 20 April 1990, reassigned him to the U.S. Army Separation Transition Point, Fort Jackson, SC, for the purpose of separation processing, with a reporting date of 26 July 1990, followed by assignment to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his remaining Reserve obligation.  The orders further state that his date of relief from active duty (REFRAD) unless changed or rescinded was 28 July 1990.  However, a
1st endorsement, issued by the U.S. Army Transition Point, Fort Jackson, dated 26 July 1990, changed his effective date of REFRAD to 26 July 1990.  It also changed his assignment (after separation processing) to the USAR Control Group (Annual Training).

3.  Item 12c of the applicant’s DD Form 214 for the period ending 26 July 1990 shows he served 1 year, 11 months, and 28 days of creditable active service.

4.  There is no evidence that shows he effectively completed 2 years of creditable active service during his Regular Army service.

5.  As a USAR Soldier, his DD Form 214 for the period ending 18 March 1991 shows he was ordered to active duty on 31 January 1991 in support of Operation Desert Storm.  On 18 March 1991, he was released from active duty and he was transferred to the USAR Control Group (Reinforcement) to complete his remaining service obligation.
6.  Item 13 of his DD Form 214 for the period ending 18 March 1991 does not show the Kuwait Liberation Medal as an authorized award.  There are no Southwest Asia service medals shown on this DD Form 214.  Item 18 of this DD Form 214 does not show an entry for any deployments.

7.  The applicant’s name does not appear on the Defense Manpower Desert Shield/Desert Storm database.

8.  The Defense Manpower Data Center (DMDC) compiled the Operations Desert Shield/Desert Storm Data Base.  The primary Operations Desert Shield/Desert Storm file contains one record for each active duty member who participated in theater between 2 August 1990 and 31 July 1991 and one record for each Reserve and National Guard member or retiree who was activated or federalized in response to Operations Desert Shield/Desert Storm.  For Reserve and National Guard members, the file includes those persons activated or federalized from 2 August 1990 through 31 December 1991.  A Phase II file lists active duty personnel who served in theater between 1 August 1991 and 31 December 1993.  There are also separate files covering calendar years 1994 and 1995.

9.  There is no evidence that shows he served in Southwest Asia in support of Operations Desert Shield/Desert Storm.

10.  The Kuwait Liberation Medal awarded by the Kingdom of Saudi Arabia 
(KLM-SA) 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.

11.  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.

12.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  The regulation states for:

* item 12a (Date Entered Active Duty (AD) This Period), enter the beginning date of the continuous period of AD for issuance of this DD Form 214, for which a DD Form 214 was not previously issued


* item 12b (Separation Date This Period), enter the Soldier’s transition date.  This date may not be the contractual date if Soldier is separated early, voluntarily extends, or is extended for make-up of lost time, or retained on active duty for the convenience of the Government
* item 12c, enter the amount of service this period, computed by subtracting item 12a from 12b
* item 18, enter the statement "SERVICE IN (NAME OF COUNTRY DEPLOYED) FROM (inclusive dates for example, YYYYMMDD-YYYYMMDD)" for an active duty Soldier deployed with his or her unit during their continuous period of active service

13.  Army Regulation 635-10 (Processing Personnel for Separation), paragraph
3-5 (time limits for completion of final transition processing), provides, in pertinent part, that overseas returnees will be separated on the first workday after arrival at the Separation Transfer Point, when possible.  All other Soldiers will be separated on their scheduled transition date, except those who elect to separate on the last workday before a weekend or holiday.

14.  Department of Veterans Affairs (DVA) booklet, “Federal Benefits for Veterans and Dependents,” 2008 edition, provides the basic eligibility requirements for DVA Health Care.  It provides, in pertinent part, that veterans who enlisted after 7 September 1980, or who entered active duty after
16 October 1981 must have served 24 continuous months or the full period for which they were called to active duty in order to be eligible.  This minimum duty requirement may not apply to veterans discharged for hardship, early out, or a disability incurred or aggravated in the line of duty.

15.  In the processing of a previous case with the same issue, a staff member contacted officials at the DVA, Health Eligibility Career Center, in Atlanta, GA, in an attempt to ascertain what the appropriate action would be for the Board to direct in cases such as the applicant’s that would allow all such veterans to go to any DVA field operating agency and receive the benefits to which they were entitled.  Officials at the DVA opined that if a statement to the effect that an individual had been separated at the convenience of the government and that they had fulfilled their first full term of enlistment was entered in the remarks section of the DD Form 214, it would be acceptable in any DVA office and would serve as a waiver of the 24-month requirement. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he served 2 years of continuous service in the Army. While the evidence of record clearly shows he only served 1 year, 11 months, 


and 28 days of total active service, which was 2 days short of his 24-month contract, the evidence of record also shows it appears this early separation occurred only through the convenience of the government.

2.  It also appears he was serving overseas at the time he was returned to the United States for separation and because his scheduled separation date was supposed to be on 28 July 1990 (a Saturday), he should have been discharged on that date.  However, he was returned to the United States on 26 July 1990 and was released that same day.

3.  As a result of this premature separation, through no fault of the applicant, he is being unduly disadvantaged in that he is being denied DVA medical benefits that he may be entitled to receive, by virtue of his DD Form 214 not showing he completed his first full term of service, when in fact, as far as the Army was concerned, he had fulfilled his contract and was separated as an early overseas returnee at the convenience of the government.

4.  There is insufficient evidence on which to correct his DD Form 214 for the period ending 26 July 1990 to show he completed 2 years of creditable active service.  However, it would be in the interest of justice at this time to correct this DD Form 214 to show in item 18 (Remarks) the entry, “The individual was separated at the convenience of the government and has fulfilled his first full term of active service.”

5.  Although the applicant contends he deployed to Saudi Arabia, Kuwait, and Iraq in 1991, his name does not appear on the Defense Manpower Desert Shield/Desert Storm database.  There is also no evidence that shows he actually deployed to the Southwest Asia theater in support of Operations Desert/Desert Storm.  Therefore, there is an insufficient basis for granting his request to correct item 18 of his DD Form 214 for the period ending 18 March 1991 or for awarding any Southwest Asia service-related awards.

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 18 of his DD Form 214 for the period ending 26 July 1990 the entry, “The individual was separated at the convenience of the government and has fulfilled his first full term of active service.”

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 correcting:

* item 12c of his DD Form 214 for the period ending 26 July 1990 to show that he served 2 years of service
* item 13 of his DD Form 214 for the period ending 18 March 1991 to show Southwest Asia service-related awards
* item 18 of his DD Form 214 for the period ending 18 March 1991 to show he deployed to Southwest Asia



      ____________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)                                         AR20100022193



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ABCMR Record of Proceedings (cont)                                         AR20100022193



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