BOARD DATE:	  9 February 2012
 
		DOCKET NUMBER:  AR20110013012 


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 reconsideration of an earlier request for award of the:

* Armed Forces Expeditionary Medal (AFEM) for participation in Operation Just Cause
* Distinguished Flying Cross (DFC)
* Air Medal (AM) with Numeral 2 and with "V" Device
* Humanitarian Service Medal (HSM)
* Kuwait Liberation Medal - Saudi Arabia (KLM-SA)
* Kuwait Liberation Medal - Kuwait (KLM-K)
* Southwest Asia Service Medal (SWASM) with two bronze service stars
* Basic Army Aviator Badge

2.  The applicant states the Army Board for Correction of Military Records (ABCMR) failed to consider weighted evidence, incorrectly applied Department of Defense (DOD) terms and definitions, and violated DOD and Department of the Army (DA) policies and procedures resulting in the Board issuing an arbitrary and capricious decision on 19 May 2010.

3.  The applicant provides:

* Army Regulation 600-8-22 (Military Awards)
* ABCMR decision, dated 19 May 2010
* Article titled "Lightfighter Communications in Operation Just Cause"


* DA Form 67-8 (Officer Evaluation Report (OER))
* Airborne Express Press Release
* Conduct of the Persian Gulf War
* Letter by N. Adams, dated 19 March 1993
* Performance of Selected Weapon Systems
* Affidavits
* DOD definitions and terms

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests:

	a.  the ABCMR reconsider its previous decision on the grounds the ABCMR incorrectly interpreted Army Regulation 600-8-22 and rendered an arbitrary and capricious decision without granting the applicant full relief.

	b.  a total review of the applicant's case by the ABCMR and he reserves the right to seek judicial review of the Board's findings by a Federal court should the applicant not be granted full favorable relief.

	c.  copies of all previous and future correspondence and communications with an entity or person outside the agency or Board that pertains directly to the applicant's case or has a material effect on the applicant's case.

	d.  a personal appearance before the board, the right to respond to any and all opinions, and the right to submit additional evidence up until the date the Board issues a final decision after reconsidering the facts of the case.

2.  Counsel states:

	a.  the ABCMR's decision violated the DA's Equal Opportunity policy by consistently operating to the disadvantage of Inactive Ready Reserve Members of the Armed Forces of the United States.

	b.  with regard to the applicant's request for the AFEM, the applicant was assigned as a signal node platoon leader with Company A, 127th Signal Battalion, 7th Infantry Division, Fort Ord, CA from 4 February 1989 to 15 October 1989.  He was deployed to Panama and participated in Operation Nimrod Dancer.  He was given a follow-on assignment to work in Panama in October 1989.  He was administratively transferred to Company C, 127th Signal Battalion and provided combat communications support during Operation Just Cause 


between 20 December 1989 and 31 January 1990.  He redeployed in February 1990.  He made inquires but never received an OER covering the period
16 October 1989 to 7 August 1990, which included his assignment during Operation Just Cause.

	c.  with regard to the applicant's request for the DFC, the applicant distinguished himself by exceptionally valorous achievement during the period
12 January 1991 to 17 January 1991 while serving as a volunteer crewmember aboard a cargo aircraft transporting communication systems and computers needed for the offensive launch of operation Desert Storm from Dallas, TX.  He volunteered for the mission knowing the aircraft could not communicate with coalition forces and was not equipped with early warning missile and aerial combat countermeasure systems needed to defend the airship against ominous attacks and that the crew would not be issued any personal protective equipment.  The applicant was a member of the U.S. Army Reserve (USAR) holding an officer's commission during the timeline in question.  The ABCMR failed to realize the DFC may be awarded to any person while serving in any capacity with the Army of the United States.  The ABCMR incorrectly added requirements for the award and misinterpreted key terms of the regulation.

	d.  with regard to the applicant's request for the AM with Numeral 2 and with "V" Device, the applicant distinguished himself by exceptionally valorous achievement during the period on or about 28 January 1991 to 2 February 1991 while serving as a volunteer crewmember aboard a commercial cargo aircraft transporting oil spill recovery equipment needed to protect personnel, the Persian Gulf, and water plants.  He also distinguished himself by exceptionally valorous achievement during the period 8 October 1991 to 12 October 1991 while serving as a volunteer crewmember aboard a commercial cargo aircraft transporting oil well firefighting equipment to Saudi Arabia.

	e.  with regard to the applicant's request for the HSM, the applicant meets the requirements established in Army Regulation 600-8-22 with the exception of being on active duty.  He participated in a humanitarian mission to help the country of Kuwait restore their oil production by extinguishing the fires and by being a member of the Armed Forces of the United States while serving as a crew member aboard an aircraft that was operating in Saudi Arabia airspace within the applicable dates of eligibility (on or about 8 October 1991) which provided direct support to the Armed Forces of the United States.

	f.  with regard to the applicant's request for the SWASM with two bronze service stars, KLM-SA, and the KLM-K, the applicant met the requirements by 


the fact he was in Southwest Asia while serving as a commissioned officer in the USAR, while serving as a crew member aboard an aircraft that was providing logistical support to the Department of the Army during the defense of Saudi Arabia, the liberation and defense of Kuwait, and the Southwest Asia cease fire.

	g.  with regard to the applicant's request for the Basic Aviator Badge, the applicant served as a crewmember on three different long-range international strategic inter-theater flights that provided the DOD and the DA with mission critical equipment that can be attributed to playing a significant part in the overall success of the war.  He performed the duties of a crewmember aboard each of the flights without pay and exceeded the required number of hours required to be eligible for a waiver from the Board to be permanently awarded the badge.

3.  Counsel provides:

* DD Form 149 (Application for Correction of Military Record)
* Applicant's original letter to the ABCMR
* Detail of awards for reconsideration
* Applicant's declaration
* Three DA Forms 638 (Recommendation for Award)
* DA Form 4187 (Personnel Action)
* Exhibits

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20090011443, on 18 May 2010.

2.  The arguments and documentation provided by the applicant and counsel are new evidence that warrants consideration by the Board.

3.  The applicant enlisted in the Regular Army on 23 May 1985 for a period of 4 years.  He completed his training as an infantryman and he attended and completed Officer Candidate School (OCS) in August 1986.  He was honorably discharged in the rank/grade of sergeant (SGT)/E-5 on 7 August 1986 to accept a commission as an officer.

4.  He was commissioned as a second lieutenant in the USAR, Signal Corps, on 8 August 1986 and entered active duty on that date.  He was promoted to first lieutenant on 8 February 1988.  His OER covering the period 4 February 1989 to 15 October 1989 indicates he was assigned to Company A, 127th Signal Battalion and he deployed to Panama in support of Operation Nimrod Dancer.  On 7 August 1990, he was honorably released from active duty by reason of completion of required service.  He completed 5 years, 2 months, and 15 days of creditable active service and he was transferred to the USAR Control Group (Reinforcement) to complete his statutory service obligation.

5.  There are no orders for the DFC, AM with Numeral 2 and with "V" Device, or Basic Army Aviator Badge in the available records.

6.  The applicant provided three DA Forms 638, dated 18 May 2011, submitted by a civilian transportation broker for award of the:

* DFC for valor during the period 12-17 January 1991
* AM with "V" Device during the period 18 January 1991 to 2 February 1991
* AM (2nd Award) during the period 8-12 October 1991

7.  There is no evidence of record that shows he deployed to Panama in support of Operation Just Cause during the period 20 December 1989 to 31 January 1990.

8.  There is no evidence of record that shows he was assigned to Company C, 127th Signal Battalion in Panama during the period 20 December 1989 to 
31 January 1990.

9.  Information obtained from the Defense Finance and Accounting Service (DFAS) indicates there is no evidence that shows he ever received hazardous fire/imminent danger pay or combat zone tax exclusion payments.

10.  There is no evidence that shows he participated in a DOD approved military act or operation of a humanitarian nature.

11.  There is no evidence of record that shows he was deployed to Southwest Asia in support of Operations Desert Shield/Desert Storm.

12.  The Defense Manpower Data Center (DMDC) compiled the Operations Desert Shield/Desert Storm Database.  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.  The applicant's name does not appear on this database.

13.  Records show on 17 July 2009 the president of a logistics company in Humble, TX, forwarded a request to his congressional representative requesting a congressional recommendation be made to The Secretary of the Army to award the applicant the award of the DFC, AM with Numeral 2 and with “V” Device, HSM, SWASM, KLM-SA, and KLM-KU while working as a project manager, cargo load master, and crewmember aboard a civilian transport jet in support of Operation Desert Shield/Desert Storm.  It appears that at that time the applicant was a civilian employee of the logistics company.

14.  Records show that on 16 October 2009 officials at the U.S. Army Human Resources Command, Alexandria, VA responded to the congressional representative informing him that while the applicant was a USAR member during the period in question, he was not serving on active duty nor was he deployed as an activated USAR member in support of Operation Desert Shield/Desert Storm and as such, he was not authorized the requested awards.  The Chief, Military Awards Branch further stated that those awards are strictly for personnel serving in the Army; therefore, the applicant’s service as a civilian employee with a private air carrier did not make him eligible to receive the awards.

15.  Army Regulation 600-8-22 provides Department of the Army policy, criteria, and administrative instructions concerning individual military decorations, Army Good Conduct Medal, service medals and ribbons, combat and special skill badges and tabs, unit decorations, and trophies, and similar devices awarded in recognition of accomplishments.  It states:

	a.  the AFEM is awarded for qualifying service after 1 July 1958 in U.S. military operations, U.S. operations in direct support of the United Nations, and U.S. operations of assistance for friendly foreign nations.  Qualifying service for this award includes participation in Panama in support of Operation Just Cause from 20 December 1989 through 31 January 1990.

	b.  the DFC is awarded to any person who, while serving in any capacity with the Army, distinguishes himself or herself by heroism or extraordinary 
achievement while participating in aerial flight.  The performance of the act of heroism must be evidenced by voluntary action above and beyond the call of duty.  The extraordinary achievement must have resulted in an accomplishment so exceptional and outstanding as to clearly set the individual apart from his or her comrades or from other persons in similar circumstances.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

	c.  the AM is awarded in time of war for heroism and for meritorious achievement or service while participating in aerial flight.  This award is primarily intended for personnel on flying status but may also be awarded to those personnel whose combat duties require them to fly; for example, personnel in the attack elements of units involved in air-land assaults against an armed enemy.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.  Department of the Army message, date/time group 051044Z April 1991, provided implementation guidance for award of the Air Medal for service in the Southwest Asia Theater of Operations.  The message stated:  "The Air Medal for meritorious service in the Southwest Asia Theater of Operations is authorized for sustained distinction in the performance of duties involving regular and frequent aerial flight for a period of at least 6 months.  For the purpose of this award, approving authorities may consider time flown in Southwest Asia commencing 2 August 1990."

	d.  Arabic numerals are now used instead of oak leaf clusters for the second and succeeding awards of the AM.  The numeral 2 denotes the second award of the AM.

	e.  the bronze “V” device indicates acts of heroism involving conflict with an armed enemy and authorizes the device in conjunction with award of the AM.

	f.  the HSM is awarded to members who, after 1 April 1975, distinguished themselves by meritorious direct participation in a Department of Defense approved significant military act or operation of a humanitarian nature.  A service member must be on active duty at the time of direct participation, must have directly participated in the humanitarian act or operation within the designated geographical area of operation and within specified time limits, and must provide evidence that substantiates direct participation.

	g.  the SWASM 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)

	h.  the 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.
	i.  the KLM-K 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.

	j.  the Basic Army Aviator Badge is authorized to U.S. Personnel who have satisfactorily completed prescribed training and proficiency tests as outlined in Army Regulation 600-105 (Aviation Service of Rated Army Officers) and must have been designated as an aviator in orders.

16.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  Paragraph 2-11 states applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions the ABCMR failed to consider weighted evidence, incorrectly applied DOD terms and definitions, and violated DOD and DA policies and procedures resulting in the Board issuing an arbitrary and capricious decision on 19 May 2010 were carefully considered and determined not to have merit.

2.  He contends he should be awarded the AFEM for participation in Operation Just Cause.  However, there is no evidence and the applicant provided no evidence that shows he was deployed to Panama in support of Operation Just Cause during the period 20 December 1989 and 31 January 1990.  Therefore, there is insufficient evidence on which to base award of the AFEM.

3.  His request for reconsideration for the award of the DFC, AM with Numeral 
2 with "V" Device, Basic Army Aviator Badge, HSM, KLM-SA, KLM-KU, and SWASM with two bronze service stars was carefully considered.  However, the interpretation of Army Regulation 600-8-22 as outlined in Docket Number AR20090011443 is correct.  These are military awards for military personnel and he was not acting in a military capacity during periods/actions he contends he should be awarded them.

4.  Evidence shows the applicant was a USAR first lieutenant at the time; however, he was not serving in any official capacity as a Soldier for the Army at the time.  He was serving as a civilian contractor aboard a civilian transport jet providing cargo services to both civilian and military organizations in the theater.  Therefore, he is not entitled to receive military awards for his services during the period in question simply because he held status as a Reserve military officer at the time.

5.  His request for a personal appearance hearing was also carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision.  As a result, a personal appearance hearing is not warranted to serve the interest of equity and justice 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 to amend the decision of the ABCMR set forth in Docket Number AR20090011443, dated 18 May 2010.



      __________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)                                         AR20110013012



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ABCMR Record of Proceedings (cont)                                         AR20110013012



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