IN THE CASE OF:	  

		BOARD DATE:	  28 May 2013

		DOCKET NUMBER:  AR20120019778 


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, under honorable conditions discharge and correction of his DD Form 214 (Certificate of Release or Discharge form Active Duty) to add any awards to which he is entitled.

2.  The applicant states he was unfairly forced out of Army because of his supervisor's (a noncommissioned officer (NCO)) personal reasons.  He felt like his career was taken away.  He was not given the means to defend himself.  Aside from his NCO's constant, petty, and sometimes grossly unfair counseling statement, he was an exemplary Soldier.  He served in Gulf War I and in Operation Provide Comfort.  The ribbons and medals he should have received were withheld by the offending NCO.

3.  The applicant provides no additional evidence.

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 25 May 1989 and held military occupational specialty 36L (Transportable Switching Systems Operator/Maintainer).  The highest rank/grade he attained while serving on active duty was private first class/E-3.

3.  On 15 April 1989, the 63rd Signal Battalion was reorganized and redesignated an Army Area Signal Battalion and Company F, 16th Signal Battalion was redesignated Company D, 63rd Signal Battalion.

4.  His DA Form 2-1 (Personnel Qualification Record) shows he was assigned to Company F, 16th Signal Battalion (redesignated as Company D, 63rd Signal Battalion), Germany from 9 April 1990 to 22 January 1992.   This form also credited him with completion of his overseas tour in Germany.

5.  His record shows he received negative counseling statements while assigned to Germany. 

* on 13 August 1990, for failing to dispatch a vehicle for the duty driver while serving as assistant charge of quarters (CQ)
* on 20 August 1990, for failing to wear his identification tags to formation
* on 7 September 1990, for failing to turn in his linen
* on 22 October 1990, for an initiated suspension of favorable personnel action (flag), his personal conduct on and off duty, and a pending adverse action
* on 26 November 1990, for being overdue on his deferred payment plan
* on 25 July 1991, for failing the Army Physical Fitness Test (APFT)
* on 26 July 1991, for failing to report to duty as assistant CQ
* on 28 October 1991, for dishonored checks in the amount of $565.50
* on 30 October 1991, for being overdue on his deferred payment plan a second time
* on 26 November 1991, for failing the APFT a second time
* on 20 December 1991, for stealing another Soldier's personal property

6.  His name is listed on the Gulf War roster and shows he was deployed to Southwest Asia from on or about 1 January 1991 to on or about 31 May 1991.

7.  His record contains a U.S. Army Criminal Investigation Command Report of Investigation (Final), dated 10 October 1990, which determined there was sufficient probable cause to charge him for indecent assault and indecent exposure.

8.  On 16 October 1990, his commander initiated a nontransferable flag for adverse action.

9.  His record contains a Military Police Report, dated 28 October 1991, which shows he was charged with failure to yield the right of way and causing an accident which resulted in severe injuries to the other party.

10.  On 28 October 1991, his commander received a notification of indebtedness for dishonored checks in the amount of $565.50.

11.  On 12 November 1991, the Army announced the 63rd Signal Battalion would be restationed from the 7th Signal Brigade in Europe to a new home station at Fort Gordon, Georgia.  

12.  On 18 November 1991, he received notification that a check in the amount of $150.00 was being returned for insufficient funds.

13.  His DA Form 2-1 (Personnel Qualification Record) shows he was assigned to Company D, 63rd Signal Battalion, Fort Gordon, GA from 23 January 1992 to 17 August 1992.

14.  His record shows he received negative counseling statements while assigned to Company D, 63rd Signal Battalion, Fort Gordon, GA.

* on 13 March 1992, for failing the APFT
* on 16 May 1992, because he was being recommended for a bar to reenlistment

15.  On March 1992, his commander initiated a bar to reenlistment against him.

16.  On 11 May 1992, his commander disapproved award of the Army Good Conduct Medal because he was barred from reenlistment for being a two-time APFT failure. 

17.  On 29 June 1992, he accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to report to his appointed place of duty.

18.  On 22 May 1992, his commander reviewed his bar to reenlistment and decided it would remain in effect.

19.  His record does not contain any evidence to show he was recommended for or received awards.

20.  On 23 July 1992, his commander notified him of his intent to initiate separation action against him under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance, for continuous unacceptable performance dating back to 26 July 1991, an act of unsatisfactory performance while barred from reenlistment, and two consecutive APFT failures.  On this same date, the applicant acknowledged receipt of the notification.

21.  On 23 July 1992, his commander formally initiated separation action against him under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.

22.  His record contains a Report of Mental Status Evaluation, a Standard Form (SF) 93 (Report of Medical History), and an SF 88 (Report of Medical Examination), dated 24 - 29 July 1992, which show he was psychiatrically and medically qualified for military service with no medical limitation or significant mental illness. 

23.  On 28 July 1992, he consulted with legal counsel and he was advised of the basis for the contemplated separation action, the possible effects of a general discharge, and of the rights available to him.  

24.  The separation authority waived all further rehabilitation and counseling requirements, approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 13, by reason of unsatisfactory performance, and directed he receive a general, under honorable conditions characterization of service.  

25.  His DD Form 214 shows he was discharged on 17 August 1992 under the provisions of chapter 13, Army Regulation 635-200 for unsatisfactory performance and received a general, under honorable conditions discharge.  He completed 3 years, 2 months, and 23 days of net active service, of which 1 year, 9 months, and 15 days was credited as foreign service.  His DD Form 214 also shows he was awarded or authorized the:

* "National Defense Service Medal (2nd Award)"
* Army Service Ribbon
* Marksman Marksmanship Qualification Badge with Rifle Bar (M-16)

26.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy, criteria, and administrative instructions concerning individual and unit military awards.

	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 1 August 1993.

	d.  The Overseas Service Ribbon was established by the Secretary of the Army on 10 April 1981.  Effective 1 August 1981, all members of the Active Army, Army National Guard, and Army Reserve in an active Reserve status are eligible for the award for successful completion of overseas tours.  

27.  Army Regulation 635-200 (Enlisted Separations), chapter 13 (Separation for Unsatisfactory Performance), states a Soldier may be separated under this chapter when it is determined that he or she is unqualified for further military service because of unsatisfactory performance.  Commanders will separate a Soldier for unsatisfactory performance when it is clearly established that, in the commander's judgment, the Soldier will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier, or the seriousness of the circumstances is such that the Soldier's retention would have an adverse impact on military discipline, good order, and morale, and it is likely that the Soldier will be a disruptive influence in present or future duty assignments, and it is likely that the circumstances forming the basis for initiation of separation proceedings will continue or recur, and the ability of the Soldier to perform duties effectively in the future, including potential for advancement or leadership, is unlikely, and the Soldier meets retention medical standards.

28.  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.

29.  Army Regulation 635-5 (Personnel Separations - Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.
Chapter 2 establishes standardized policy for preparation of the DD Form 214.  It states for:

* item 13 (Decorations, Medals, Badges, Citations and Campaign Medals Awarded or Authorized), list awards and decorations for all periods of service in the priority sequence and verify each entry with the Soldier's records
* item 18 (Remarks), for an active duty Soldier deployed with his/her unit during their continuous period of active service, enter "Service in (Name of Country Deployed) From (inclusive dates, YYYYMMDD - YYYYMMDD)"

DISCUSSION AND CONCLUSIONS:

1.  The applicant was discharged from active duty for continuous unacceptable performance dating back to July 1991, an act of unsatisfactory performance while barred from reenlistment, and two consecutive APFT failures.  These are grounds for separation under chapter 13 of Army Regulation 635-200 for unsatisfactory performance.  

2.  There is no evidence of record and he has not provided any evidence to show his discharge was administratively incorrect or that he was not properly and equitably discharged in accordance with the regulations in effect at the time and that all requirements of law and regulations were not met or that his rights were not fully protected throughout the separation process.  

3.  His record contains a history of extensive history of misconduct, such as negative counseling, dishonored checks, failure to report for duty, indecent assault, indecent exposure, NJP, and theft.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  In view of the foregoing, there is no basis for granting an honorable discharge in this case.

4.  The evidence of record shows he was assigned to a unit in Germany which was redesignated and relocated to Fort Gordon, GA.  His DD Form 214 shows he completed 1 year, 9 months, and 15 days of foreign service prior to the relocation of his unit.  Additionally, his DD Form 2-1 credited him with the completion of his overseas tour.  Therefore, he is entitled to correction of his DD Form 214 add the Overseas Service Ribbon.

5.  The evidence of record shows he deployed to Southwest Asia from on or about 1 January 1991 to on or about 31 May 1991.  

	a.  The entry is based on finance records from the Defense Finance an Accounting Service, as such, regardless of his arrival or departure date he would have received hostile fire pay from the first calendar day of his arrival month until the last calendar day of his departure month.  

	b.  However, in the interest of equity, his DD Form 214 should be corrected to show he served in Southwest Asia from 1 January 1991 to 31 May 1991.  

	c.  His service in Southwest Asia met the criteria for award of the Southwest Asia Service Medal with three bronze service stars, the Kuwait Liberation Medal-Saudi Arabia, and the Kuwait Liberation Medal-Kuwait  and correction of his DD Form 214 to add these awards.

6.  The evidence of record shows he was never recommended for or awarded a personal decoration or award and his commander disapproved award of the Army Good Conduct Medal because he was barred from reenlistment for being a two time APFT failure.  Additionally, he spent the majority of his military service, since 22 October 1990, either under a flag and/or barred from reenlistment.  As such he would have been ineligible to receive favorable personnel actions such as awards.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x___  ____x___  ____x___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is 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 his DD Form 214 in:

	a.  item 13 the

* Southwest Asia Service Medal with three bronze service stars
* Kuwait Liberation Medal-Saudi Arabia
* Kuwait Liberation Medal-Kuwait
* Overseas Service Ribbon

b.  item 18 the entry "Southwest Asia From 19910101 - 19910531"

2.  The Board further determined 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 personal awards or decoration and upgrading his characterization of service to honorable.



      ____________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)                                         AR20120019778





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ABCMR Record of Proceedings (cont)                                         AR20120019778



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