IN THE CASE OF:	  

		BOARD DATE:  31 May 2012

		DOCKET NUMBER:  AR20110019982 


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 that his under other than honorable conditions (UOTHC) discharge be upgraded and his records corrected to show all of his authorized awards.

2.  The applicant states his entire period of outstanding service was not considered.  He was railroaded out of the service and the medals that he earned were removed from his record.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that an upgrade of the applicant's discharge be carefully considered. 

2.  Counsel states, in effect, that the applicant's 9 years of service in concert with his awards warrants a serious consideration for an upgrade.

3.  Counsel provides no additional documentation.

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 on 19 July 1983, and he served honorably during the following periods:

* 19 July 1983 through 6 February 1986
* 7 February 1986 through 26 January 1989
* 27 January 1989 through 3 October 1991

3.  The applicant served in Southwest Asia during the Persian Gulf War from 16 September 1991 through 17 April 1991 and he was awarded the Southwest Asia Service Medal with 3 bronze service stars and the Kuwait Liberation Medal.

4.  He reenlisted 4 October 1991 in the rank of sergeant.  He served in military occupational specialty 76P (Materiel Control and Accounting Specialist).  

5.  The record contains a copy of only his first Noncommissioned Officer (NCO) Evaluation Report, dated 20 December 1991.  His rater marked him as fully capable and his senior rater marked his performance and promotion potential in the third successful block.

6.  The applicant received nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice:

	a. on 25 November 1991, for failure to go to his appointed place of duty, a physical fitness test formation.  

	b.  on 14 October 1992, for failure to go to his appointed place of duty on two occasions, dereliction of duty by willfully failing to pass his physical fitness test, and dereliction of duty by failing to supervise the detail taking down camouflage nets.  


7.  The available record contains award orders for an Army Commendation Medal, Army Achievement Medal, and three sets of orders issued on three separate dates for the Good Conduct Medal for the same period.  

8.  The applicant’s discharge packet is not available.

9.  On 26 March 1993, the applicant was discharged, in pay grade E-1, under the provisions of Army Regulation 635-200, paragraph 14-12c, for the commission of a serious offense with a UOTHC discharge.  He had completed 9 years, 
8 months, and 8 days of continuous active service with no lost time.  His 
DD Form 214 shows he was awarded the Army Commendation Medal, Army Good Conduct Medal, National Defense Service Medal, NCO Professional Development Ribbon, Army Service Ribbon (two entries), Southwest Asia Service Medal with three bronze service stars, Marksman Marksmanship Qualification Badge with Rifle Bar, Overseas Service Bar, and Kuwait Liberation Medal.

10.  The available record contains no documentation of any negative factors, disciplinary infractions, or punishment prior to the 25 November 1991 NJP.  It also does not contain any information concerning what offense led to the applicant's discharge or any documentation of the processing of this discharge action.

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

	a.  Army Service Ribbon is awarded upon successful completion of initial entry training.

	b.  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.

	c.  Kuwait Liberation Medal awarded by the Government of Kuwait (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.

12.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It establishes standardized policy for preparing and distributing the DD Form 214 and states the DD Form 214 is a summary of a Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge.

13.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  : 

	a.  Paragraph 3-7a provides that an honorable discharge (HD) 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.

	b.  Paragraph 3-7b states that a general discharge (GD) is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an HD.  

	c.  Paragraph 3-7c states that a UOTHC discharge is issued when there is one or more acts or omissions that constitute a significant departure from conduct expected of a Soldier.

	d.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A UOTHC discharge is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a GD if such is merited by the Soldier’s overall record.  

12.  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 2-9 states the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant does not identify what awards were allegedly removed from his records.  The only award that the applicant was authorized at the time of discharge that can be identified as not being included on his DD Form 214 is the Army Achievement Medal.  Therefore, it would be appropriate add this medal to his DD Form 214.

2.  At the time of discharge only the Kuwait Liberation Medal - Saudi Arabia had been authorized.  Subsequently, the Kuwait Liberation Medal - Kuwait was also authorized to personnel serving in the theater of operations during the Persian Gulf War.  The medals were distinguished by inclusion of the name of the country awarding the medal.  The applicant is authorized both medals.  

3.  Therefore, the entry of the Kuwait Liberation Medal should be deleted from item 13 on the DD Form 214 and the Kuwait Liberation Medal - Saudi Arabia and Kuwait Liberation Medal - Kuwait should be added.

4.  The applicant's DD Form 214 lists the Army Service Ribbon twice.  However, this award is authorized only once; but, the second entry will only be removed upon the applicant's request.

5.  The regulation governing this Board's operation requires that the discharge process be presumed to have been in accordance with applicable law and regulation unless the applicant can provide evidence to overcome this presumption.  The available evidence does not overcome this presumption.

6.  While an upgrade of his characterization of service is not justified, this action in no way diminishes the sacrifices made by the applicant in his service to our Nation.  The applicant and all Americans should be justifiably proud of his three periods of honorable service and the awards he earned during those periods of service in arms.  

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 the Kuwait Liberation Medal from his DD Form 214; and 

	b.  adding the Army Achievement Medal, Kuwait Liberation Medal - Saudi Arabia, and Kuwait Liberation Medal - Kuwait to his DD Form 214.

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 upgrading the applicant's characterization of service.  



      __________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)                                         AR20110022235



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ABCMR Record of Proceedings (cont)                                         AR20110019982



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