IN THE CASE OF:  	  

		BOARD DATE:  4 December 2014	  

		DOCKET NUMBER:  AR20140005819 


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 effect:

	a.  an upgrade of his discharge under other than honorable conditions to honorable or a medical discharge;

	b.  award of the Southwest Asia Service Medal (SWASM); and

	c.  correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his deployment to Kuwait in 1993.

2.  The applicant states:

	a.  He served in Kuwait from 25 October 1993 to 24 December 1993.  He was sent over with the 5th Engineer Battalion from Fort Leonard Wood, Missouri, and they were attached to the 3rd Armored Calvary Regiment from Fort Bliss, Texas.  The overseas duty is not shown on his current record and he did not receive the associated overseas service medal.

	b.  He realizes his request for an honorable or medical discharge is being made almost 20 years after the fact, but he has continued to work toward bettering his life and the change in discharge would help him to achieve his dreams and provided a better example for his future children.  He is currently enrolled in school to garner an advanced degree in nursing.

	c.  Due to his service in the Army, he sustained considerable hearing loss in both ears.  The Army provided hearing aids for his use at the time after many trips to Denver and Seattle for testing and a medical board review and approval.  He was scheduled for a full medical discharge at the time.  The hearing loss is not something that will ever get better and he still continues to deal with issues related to it.

	d.  Due to his questionable actions at the time, which he takes full responsibility for, in lieu of a court-martial he waived his disability rights and compensation and was released from the Army.  He realizes his actions when he was younger were misguided and immature, but he hopes that it will not follow him for the rest of his life.

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 was born on 11 July 1973.  He enlisted in the Regular Army on 25 February 1993 for 4 years.  He completed his training and was awarded military occupational specialty 12B (Combat Engineer).

3.  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.  This data base shows he served in SWA from 1 October 1993 to 31 December 1993 (a total of 3 months).

4.  His records contain a DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 26 May 1994, which shows:

	a.  A formal PEB found him physically unfit due to bilateral hearing loss.

	b.  The PEB recommended a 0-percent disability rating and separation with severance pay.

	c.  On 26 May 1994, he concurred with the recommendation of the PEB.

	d.  On 27 May 1994, the U.S. Army Physical Disability Agency approved the PEB's findings.

5.  On 8 June 1994, charges were preferred against the applicant for:

* possessing 4.3 grams of marijuana
* distributing 4.3 grams of marijuana
* using marijuana

6.  On 14 June 1994, he consulted with counsel and requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  He acknowledged that by submitting his request for discharge he was guilty of a charge against him that authorized the imposition of a bad conduct or dishonorable discharge.  He indicated he understood he might be discharged under conditions other than honorable and given a discharge under other than honorable conditions, he might be ineligible for many or all benefits administered by the Department of Veterans Affairs , he might be deprived of many or all Army benefits, and he might be ineligible for many or all benefits as a veteran under both Federal and State laws.  He acknowledged he might expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.  He elected not to make a statement in his own behalf.

7.  On 16 June 1994, the separation authority approved his voluntary request for discharge and directed the issuance of a discharge under other than honorable conditions.

8.  On 28 June 1994, he was discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He completed 1 year, 4 months, and 4 days of creditable active service.  His service was characterized as under other than honorable conditions.

9.  His DD Form 214 shows he was awarded or authorized the:

* National Defense Service Medal
* Marksman Marksmanship Qualification Badge with Rifle Bar (M-16) 
* Marksman Marksmanship Qualification Badge with Hand Grenade Bar
* Army Service Ribbon

10.  Item 12f (Foreign Service) of his DD Form 214 does not show any foreign service.  Item 18 (Remarks) of his DD Form 214 does not show any deployments.

11.  There is no evidence that he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

12.  Army Regulation 600-8-22 (Military Awards) provides that the SWASM was awarded to members of the Armed Forces of the United States serving in SWA and contiguous waters or airspace there over 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)
* SWA Cease-Fire (12 April 1991 to 30 November 1995)

13.  Army Regulation 635-5 (Separation Documents), in effect at the time, prescribed the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It established standardized policy for preparation of the DD Form 214.  The regulation provided that for:

* item 12f, enter the total amount of foreign service completed during the period covered in item 12c (Net Active Service This Period) from the Soldier's record
* 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 country deployed) FROM (inclusive dates for example, YYYYMMDD-YYYYMMDD)"

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

	b.  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.

	c.  Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

15.  Army Regulation 635-40 ((Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-3, states an enlisted Soldier may not be referred for or continue physical disability processing when action has been started under any regulatory provision which authorizes a characterization of service of under other than honorable conditions.

DISCUSSION AND CONCLUSIONS:

1.  The data from the DMDC is accepted as sufficient evidence with which to correct item 18 of his DD Form 214 to show his dates of service in SWA.  Therefore, item 18 of this DD Form 214 should be corrected to show he served in SWA from 1 October 1993 to 31 December 1993.  In addition, item 12f of his DD Form 214 should be corrected to show he competed 3 months of foreign service.

2.  Based on his service in SWA, he is authorized award of the SWASM with one bronze service star.  Therefore, his DD Form 214 should be corrected to show this award.

3.  He stated he realizes his actions when he was younger were misguided and immature; however, age alone is not a sufficiently mitigating factor.  He was over 19 years of age when he enlisted and he successfully completed his training.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their terms of military service.

4.  His record of service included serious drug offenses for which a court-martial was recommended.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.

5.  His voluntary request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and in conformance with applicable regulations.  He had an opportunity to submit a statement wherein he could have voiced his concerns; however, he elected not to do so.

6.  The type of discharge directed and the reasons for discharge were appropriate considering all the facts of the case.

7.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant an honorable or a general discharge.

8.  He underwent disability processing and a formal PEB recommended separation with severance pay for bilateral hearing loss in May 1994.  However, in accordance with the governing regulation, his separation in June 1994 under other than honorable conditions discontinued that process.  Therefore, there is no basis for a medical discharge.

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:

	a.  adding award of the SWASM with one bronze service star to his DD Form 214,

	b.  deleting the current entry in item 12f of his DD Form 214 and replacing it with the entry "0000  03  00," and

	c.  adding the entry "SERVICE IN SOUTHWEST ASIA FROM 20031001-20031231" to item 18 of his DD Form 214.

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 upgrading his discharge under other than honorable conditions or a medical discharge.



      __________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)                                         AR20140005819



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ABCMR Record of Proceedings (cont)                                         AR20140005819



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