IN THE CASE OF:  	  

		BOARD DATE:  15 September 2015	  

		DOCKET NUMBER:  AR20150001887 


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 correction of his records as follows: 

* restoration of his rank/pay grade to specialist (SPC)/E-4
* reissue DD Form 214 (Certificate of Release or Discharge from Active Duty) to show awards of the - 

* Southwest Asia Service Medal with 2 bronze service stars
* Kuwait Liberation Medal (Saudi Arabia)
* Kuwait Liberation Medal (Kuwait)
* Combat Infantryman Badge 

2.  The applicant states, in effect:

	a.  He served in the Army from 9 March 1988 to 19 April 1991.  He served in Operation Desert Shield/Storm with the 82nd Airborne Division as an 11B1P (Infantryman).  He was in theater for 7 months and 15 days.  While in country, during a live fire, his M16A2 rifle exploded in his face and disintegrated into numerous pieces with several of those pieces hitting him in the face and eye.  The force of the explosion knocked him unconscious and he was medically evacuated out and taken to a military hospital where he remained for several days. After being discharged from the hospital, he returned to his unit.  Although he did not have the ability to shoot a weapon again, he was asked by his superiors to carry the weapon again.  When he declined to follow the order, he was then given an Article 15 for disobeying a lawful order.  Leading up to his court-martial, he was ordered to have a psychiatric evaluation.  Without ever being presented the results of the evaluation, he was advised by his attorney in country prior to his boarding the airplane at the conclusion of the war to accept an Other Than Honorable Discharge Certificate in lieu of the court-martial.  Immediately after returning home from the war, he was rushed to be discharged from the military. 

	b.  After getting out of the military, he was forwarded copies of the evaluation and learned that it was concluded that he had severe post-traumatic stress disorder (PTSD) as a result of the weapon exploding in his face.  He used these documents to support an upgrade of his discharge.  In 1994, his discharge was upgraded to honorable.  Recently, after reconnecting with a fellow comrade he learned about the commendations that were given to his unit as the result of their service in Operations Desert Storm/Shield.  He wants his record to reflect the medals and commendations that his fellow comrades received.  He also would like his DD Form 214 to reflect the medals and commendations that he earned.  Finally, he requests that his rank prior to being discharged be restored and the suspended pay be returned. 

	c.  His fellow unit members reported that they received the awards that he has requested.  He was awarded the National Defense Medal at the time of discharge.  He believes he deserves the corrections.  He was proud to be a Soldier, serving in the 82nd Airborne Division and making the ultimate sacrifice for our country.  Just like his comrades, he remained committed to the mission and put himself in harm's way on a daily basis just like they did.  Even though he was hampered by the weapon exploding and diagnosed with severe PTSD, he remained in country, traveled to Northern Iraq with his comrades and returned home with them at the conclusion of operations Desert Storm/Shield.  The Army Discharge Review Board (ADRB) has already upgraded his discharge and it is reflected on his DD Form 214.  He did not previously request the medals and commendation when his discharge was upgraded because he was not aware of the medals and commendations at that time.  Almost 24 years later, he still remains committed to the mission of serving our country and fellow veterans by volunteering to assist them with reintegrating back into society and their communities. 

3.  The applicant provides the ADRB's decision and his reissued DD Form 214. 

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's records show he enlisted in the Regular Army on 9 March 1988.  He completed basic combat and advanced individual training and he was awarded MOS 11B (Infantryman).  He also completed the Basic Airborne Course. 

3.  Following completion of training, he was assigned to Company B, 1st Battalion, 325th Infantry Regiment at Fort Bragg, NC.  He was promoted to private first class/E-3 on 1 March 1989 and SPC/E-4 on 1 June 1990.

4.  He deployed to Southwest Asia in support of Operations Desert Shield/Storm from 10 August 1990 to 15 March 1991.  

5.  On 8 December 1990 he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for disobeying a lawful command from his commanding officer.  His punishment consisted of a reduction to private two (PV2)/E-2, a forfeiture of $405 pay (suspended through 8 February 1991) and 45 days of extra duty.  He appealed the punishment but his appeal was denied. 

6.  On 4 January 1991, court-martial charges were preferred against the applicant for one specification of disobeying a lawful order to lock a magazine into his rifle on 10 December 1990.  

7.  On 20 January 1990, he underwent a psychiatric evaluation that determined at the time of his incident the applicant had a mild to moderate psychiatric condition.  The available records show he remained with his unit during the January through February 1991 timeframe and he was assigned prisoner of war control duties.  His weapon was not loaded with any ammunition. 

8.  On 6 March 1991, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable under other than honorable conditions, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested a discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.  

9.  On 9 March 1991, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial, with an under other than honorable conditions discharge and reduction to the lowest enlisted grade.  On 19 April 1991, the applicant was discharged accordingly. 

10.  His original DD Form 214 showed he was discharged under the provisions of chapter 10 of Army Regulation 635-200, for the good of the service in lieu of court-martial with an under other than honorable conditions characterization of service.  His DD Form 214 shows he completed 3 years, 1 month, and 11 days of active service.  It also shows in: 

* Items 4a (Grade, Rate or Rank) and 4b (Pay Grade) -  PVT and E-1  
* Item 12f (Foreign Service) - 7 months and 8 days of foreign service
* Item 12h (Effective Date of Pay Grade) - 9 March 1991 
* Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized), he was awarded or authorized the: 

* Army Service Ribbon
* Expert Marksmanship Qualification Badge with Rifle Bar (M-16)
* Marksman Marksmanship Qualification Badge with Grenade Bar
* Sharpshooter Marksmanship Qualification Badge with Dragon Gunner Bar
* Parachutist Badge
* National Defense Service Medal

* Item 18 (Remarks), does not show service in Southwest Asia

11.  On 17 March 1994, the ADRB reviewed his discharge processing and found it inequitable.  The ADRB recommended a change to the characterization of service, separation authority, separation code, and narrative reason for separation.  The ADRB did not restore his rank to E-2 or E-4.

12.  As a result, his DD Form 214 was voided and he was reissued a DD Form 214 that reflected his honorable discharge under the provisions of chapter 5 of Army Regulation 635-200 by reason of Secretarial authority.  This reissued DD Form 214 shows in: 

* Items 4a and 4b -  PVT and E-1  
* Item 12f - 7 months and 8 days of foreign service
* Item 12h - 9 March 1991 
* Item 13 - the Army Service Ribbon, Expert Marksmanship Qualification Badge with Rifle Bar (M-16), Marksman Marksmanship Qualification Badge with Grenade Bar, Sharpshooter Marksmanship Qualification Badge with Dragon Gunner Bar, Parachutist Badge, and National Defense Service Medal
* Item 18 - does not show service in Southwest Asia

13.  On 16 July 1997, the ABCMR reviewed his petition for restoration of his rank/grade to SPC/E-4.  Following a legal review, the Board:

	a.  Determined there was no basis as a matter of law to set aside the NJP that reduced him to E-2.  However, the Board determined his psychiatric condition affected his ability to handle a loaded weapon.  As such, the mental impairment mitigated his action to disobey a lawful order and supported setting aside the NJP action.  

	b.  Recommended removal of the NJP action from his records, voiding his reduction, and restoration of his rank/grade to SPC/E-4 with an effective date of 1 December 1990.  The Board also referred his case to the Defense Finance and Accounting Service (DFAS) for an audit of his pay records and pay him back pay, allowances, or forfeiture withheld between 8 December 1990 and 14 April 1991 as a result of this correction.  

14.  On 31 March 1998, he was issued a DD Form 215 that corrected his rank/grade to SPC/E-4 and his effective date of pay grade as 1 June 1990. 

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

	a.  The Southwest Asia Service Medal is awarded to members of the Armed Forces of the United States serving in Southwest Asia 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), and the 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 by the Government of Saudi Arabia to members of the Armed Forces of the U.S. who participated in Operation Desert Storm between 17 January and 28 February 1991 in one or more of the designated areas.  
	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 served in support of Operations Desert Shield or Desert Strom between 2 August 1990 and 31 August 1993 in one or more of the in one or more of the designated areas.

	d.  The Combat Infantryman Badge may be awarded to an infantryman satisfactorily performing infantry duties, assigned to an infantry unit during such time as the unit is engaged in active ground combat, and actively participating in such ground combat.  Specific requirements state, in effect, that an Army Soldier must have an infantry or special forces specialty/military occupational specialty and must have satisfactorily performed duty while assigned or attached as a member of an infantry, ranger, or special forces unit of brigade, regimental, or smaller size during any period such unit was engaged in active ground combat.  A Soldier must be personally present and under hostile fire while serving in an assigned infantry or special forces primary duty, in a unit actively engaged in ground combat with the enemy.  

16.  Army Regulation 635-5 (Separation Documents) at the time established the standardized policy for preparing and distributing the DD Form 214.  The DD Form 214 is a summary of a Soldier's most recent period of continuous active duty.  Item 12f shows the foreign service completed by the Soldier during the period covered by the DD Form 214. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant served in Southwest Asia from 10 August 1990 to 15 March 1991.  Therefore, item 18 of his DD Form 214 should be corrected to show this deployment. 

2.  Based on his service in Southwest Asia he served during a qualifying period for award of the Southwest Asia Service Medal, Kuwait Liberation Medal (Saudi Arabia), and Kuwait Liberation Medal (Kuwait).  Additionally, he participated in two campaigns during this period of service that entitles him to two bronze service stars for wear on the Southwest Asia Service Medal.  Therefore, item 13 of his DD Form 214 should be corrected to show these awards.

3.  With respect to the Combat Infantryman Badge, the applicant held an infantry MOS and was assigned to an infantry unit in Southwest Asia. 

	a.  In order to qualify for the Combat Infantryman Badge, there is insufficient evidence to show he was personally present and under fire while serving in an assigned primary MOS duty as a member of his infantry unit while his unit participated in ground combat.

	b.  The applicant's NJP and court-martial charges stemmed from the facts that he could not load or carry his weapon.  Additionally, the available evidence shows between January and February 1991, during the timeframe of Desert Storm, when the ground war took place, he was assigned to prisoner of war control duties and his weapon was not loaded with any ammunition.   

	c.  In the absence of additional documentary evidence such as after action reports, operations orders, morning reports, intelligence estimates, and/or officer staff duty logs confirming that he was personally present when his unit actively engaged or was engaged by the enemy, regretfully, there is insufficient evidence to support awarding him the Combat Infantryman Badge.

4.  With respect to his rank/grade, the Board previously removed the NJP action from his records, voided his reduction, and restored his rank and grade to SPC/E-4, effective 1 December 1990.  The Board also referred his case to DFAS for payment of back pay, allowances, or forfeitures withheld between 
8 December 1990 and 14 April 1991 as a result of this correction.  He was issued a DD Form 215 affecting these changes.  He was provided a copy of this form by separate correspondence.  It appears there is no further correction necessary with respect to his rank/grade and it will not be discussed further in these proceedings.

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 his reissued DD Form 214 in:

* item 13, the Southwest Asia Service Medal with two bronze service stars, Kuwait Liberation Medal (Saudi Arabia), and Kuwait Liberation Medal (Kuwait)
* item 18, the entry "service in Southwest Asia from 1990810 to 19910315"

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 adding the Combat Infantryman Badge to his DD Form 214.



      ____________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)                                         AR20150001887



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ABCMR Record of Proceedings (cont)                                         AR20150001887



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