PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            11 June 2002
	DOCKET NUMBER:   AR2002067046

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mr. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Roger W. Able		Member	
	Mr. Harry B. Oberg		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
            records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests, in effect, that a review of the circumstances surrounding his trial by court-martial be conducted by the Board, that his records be corrected to show that he was advanced to the pay grade of E-4, and that he was awarded the Overseas Service Ribbon (OSR), the National Defense Service Medal (NDSM), the Army Commendation Medal (ARCOM), the Southwest Asia Service Medal (SWASM) with three bronze service stars, the Kuwait Liberation Medal-Kuwait (KLM), and the Marksman and Sharpshooter Marksmanship Badges.  He also requests that block 10 (SGLI Coverage), block 15a (Education Assistance Participation) of his report of separation (DD Form 214) be completed and that blocks 25 (Separation Authority), 26 (Separation Code) and 27 (REENTRY Code) be deleted. 

3.  The applicant states, in effect, that he was unjustly tried by a court-martial in violation of his rights and when he complained to the Inspector General, an investigation was conducted and all evidence of his court-martial disappeared.  He further states that he was advanced to the pay grade of E-4 and was never paid for it.  He also states that his records should show his awards of the OSR, NDSM, ARCOM, SWASM, KLM-K and the Marksman and Sharpshooter Marksmanship Badges.  His counsel contends that because the applicant was a combat veteran of the Persian Gulf War, the Board should further consider advancing him to the pay grade of E-5.

4.  The applicant’s military records show that he enlisted in Chicago, Illinois on 21 September 1988, for a period of 4 years, training as a combat engineer and assignment to Europe.  He successfully completed his training and was transferred to Germany on 13 January 1989.  He was advanced to the pay grade of E-3 on 1 December 1989.

5.  On 7 December 1990, he deployed with his unit to Saudi Arabia in support of Operation Desert Shield/Storm.  While it cannot be determined from his records how long he served in Southwest Asia (SWA), he was awarded the ARCOM for valor on 25 June 1991, for his actions in SWA on 25 February 1991.

6.  On 16 December 1990, he wrote a letter to the then Secretary of the Army alleging that his chain of command was harassing and discriminating against him.  As a result, a Department of the Army Inspector General (DAIG) investigation was initiated.  The investigation failed to substantiate the applicant’s allegations and was closed in October 1991.

7.  On 12 March 1992, the applicant’s commander initiated action to separate him from the service under the provisions of Army Regulation 635-200, chapter 14, for misconduct – Minor Disciplinary Infractions.  He cited as the basis for his recommendation, the applicant’s failure to respond to repeated counseling sessions for disobeying orders, poor appearance, poor performance, bad attitude, missing formations and duty.  He also indicated that the applicant had been rehabilitatively transferred several times without results. 

8.  After consulting with counsel, the applicant elected to refuse to acknowledge his election of rights and elected not to submit matters in his own behalf.  Accordingly, his rights were waived.

9.  On 13 March 1992, the appropriate authority approved the recommendation for discharge and directed that he be furnished a General Discharge Certificate.  However, the applicant went absent without leave (AWOL) on 13 March 1992.  After attempts to locate the applicant were unsuccessful, a determination was made that since his discharge had been approved prior to his departure in an AWOL status, he would be discharged under the approved discharge.  Accordingly, he was discharged under honorable conditions on 31 March 1992, under the provisions of Army Regulation 635-200, chapter 14, for Misconduct – Minor Disciplinary Infractions.  He had served 3 years, 5 months and 23 days of total active service and had 19 days of lost time due to AWOL.  He was discharged in absentia and his DD Form 214 shows in block 10, under SGLI coverage, the remarks “NA”, in block 15a, it shows “No”, in block 26, it shows a separation code of “(JKF) JKN, and in block 27, it shows a REENTRY Code of “RE-4.” 

10.  On 11 May 1993, the Army Reserve Personnel Center authorized the issuance of the NDSM, the SWASM with three bronze service stars, the       KLM-SA, the Marksman Badge with rifle bar and the Sharpshooter Badge with grenade bar to the applicant.  However, there is no evidence to show that they were ever entered on his records.

11.  The applicant applied to the Army Discharge Review Board (ADRB) on 3 November 2000, requesting that his discharge be upgraded to honorable.  The applicant was granted a personal appearance before the ADRB Traveling Panel in Chicago on 12 June 2001, and the ADRB voted unanimously to change the characterization of his service to fully honorable, based on his post-service accomplishments.  The ADRB also voted unanimously not to change the reason for his discharge.

12.  A review of Leave and Earnings Statements contained in his records show that on 31 July 1989, $100.00 was deducted from his pay for GI Bill payments.  It indicates that he had a remaining balance of $200.00 as of that date.  His August and September 1989 statements indicate that the deductions were made each month for $100.00.  His records also show that he was insured under the SGLI for $35,000.

13.  A review of his records fails to show that he was ever tried by any type of court-martial.  His records do show that a charge sheet was prepared; but there is no indication that the charges were ever preferred against the applicant.  His records also do not contain any evidence to show that he was ever advanced to the pay grade of E-4, in accordance with applicable regulations.

14.  Army Regulation 600-8-22 establishes the criteria for awards and decorations.  It provides, in pertinent part, that the Kuwait Liberation Medal awarded by the Kingdom of Saudi Arabia (KLM-SA) is authorized to military personnel who participated in the Persian Gulf War between 17 January 1991 and 28 February 1991.  The Kuwait Liberation Medal awarded by the Government of Kuwait (KLM-K) is authorized to military personnel who participated in the Persian Gulf War between 2 August 1990 and 31 August 1993.

15.  That regulation also provides that the OSR is awarded for successful completion of a normal overseas tour and will not be awarded for overseas service recognized by another U.S. service medal.  The Southwest Asia Service Medal (SWASM) is awarded to members of the Armed Forces of the United States serving in Southwest Asia for one day or more on or after 2 August 1990.

CONCLUSIONS:

1.  The applicant has failed to show through the evidence of record or the evidence submitted with his application, that the investigation conducted by the DAIG was incorrectly conducted or that the findings were incorrect.

2.  Although the applicant contends that he was advanced to the pay grade of   E-4, there is no evidence in the form of a promotion instrument to show that he was advanced to that pay grade or that it was his commander’s intention to do so.  Likewise, there is no evidence of error or injustice present in the available records to show that he should have been advanced.  Accordingly, there is no basis to grant him an advancement at this time. 

3.  The applicant was properly discharged in accordance with the applicable regulations with no indication of any violations of his rights.  Notwithstanding the ADRB action to upgrade his discharge to honorable, there is no basis to change his separation or REENTRY codes or his narrative reason for separation, which are correct.

4.  However, the applicant did contribute to the Post-Vietnam Era Veteran’s Educational Assistance Program and was covered under the SGLI for $35,000 at the time of his separation.  Accordingly, his records should be corrected to reflect that information.
5.  The applicant was also awarded the ARCOM with “V” device, the NDSM, the SWASM with three bronze service stars, the KLM-SA, the Marksman Badge with Rifle Bar and the Sharpshooter Badge with grenade bar.  Accordingly, they should be entered on his records at this time.

6.  The applicant was also entitled to be awarded the KLM-K for his service in Saudi Arabia and the OSR for his service in Germany.  Likewise, issuance of those awards should also be made at this time and entered on his records.

7.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected:

a.  by correcting the records of the individual concerned to show that he contributed to the Post-Vietnam Era Educational Assistance Program, that he was insured under the SGLI for $35,000, and that he was awarded the ARCOM with “V” device, the NDSM, the SWASM with three bronze service stars, the KLM-SA, the Marksman Badge with rifle bar and the Sharpshooter Badge with grenade bar; and

	b.  by awarding him the KLM-K and OSR and correcting his records accordingly.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

___fe ___  ____hbo_  ___ra ___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_____Fred N. Eichorn______
		        CHAIRPERSON

INDEX

CASE ID	AR2002067046	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/06/11	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT PARTIAL	
REVIEW AUTHORITY		
ISSUES         1.  189	110.0000/CORR 214	
2.		
3.		
4.		
5.		
6.