RECORD OF PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            JANUARY 13, 2004                  
	DOCKET NUMBER:   AR2003090949

	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:

	Ms. Lana E. McGlynn		Chairperson	
	Mr. Patrick H. McGann		Member	
	Mr. Roger W. Able		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).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests that his report of separation be corrected to reflect his award of the combat infantryman badge (CIB).

2.  The applicant states, in effect, that he was awarded the CIB during Operation Desert Storm and it was not included on his DD Form 214 at the time of separation.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an error which occurred on 6 December 1991.  The application submitted in this case is dated 30 April 2003. 

2.  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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant enlisted on 8 October 1986 for a period of 4 years, training as a heavy anti-armor weapons infantryman and a cash enlistment bonus.  He completed his training and was transferred to Germany.  He was advanced to the pay grade of E-4 on 1 March 1988.  He completed his tour in Germany on 13 January 1989 and was transferred to Fort Riley, Kansas, where he was assigned to the 5th Battalion, 16th Infantry Regiment, 1st Infantry Division.

4.  On 5 October 1990, he reenlisted for a period of 4 years and on 28 December 1990, he deployed with his unit to Saudi Arabia in support of Operation Desert Shield/Storm.  He remained in Saudi Arabia until 5 July 1991, when he was returned to Fort Riley.

5.  On 28 October 1991, the applicant submitted a request for early separation under the Fiscal Year 1992 Voluntary Early Transition Program and his request was approved on 5 November 1991. 

6.  Accordingly, he was honorably released from active duty on 6 December 1991, under the provisions of Army Regulation 635-200, paragraph 16-8 and the Voluntary Early Transition Program.  He had served 5 years, 1 month and 29 days of total active service and his DD Form 214 shows he was awarded the Army Service Ribbon, the National Defense Service Medal, the Army Lapel Button, the Good Conduct Medal and his marksmanship awards.  A review of his records fails to show any orders awarding him the CIB; however, his records do contain orders awarding him two awards of the Army Achievement Medal (AAM 1st OLC), which was not included on his DD Form 214 at the time of separation.  Additionally, his service in Southwest Asia (SWA) during the period of 28 December 1990 through 5 July 1991 as well as the appropriate service medals for service in that theater are also not included on his DD Form 214.

7.  Army Regulation 600-8-22 establishes the criteria for award of the CIB.  It states, in pertinent part, that to be eligible for the CIB, an individual must be an infantryman with an infantry military occupational specialty (MOS) and must perform duty as an infantryman, as a member of an infantry unit of brigade or smaller size, during any period in which that unit was engaged in ground combat. Battle participation credit alone is not sufficient.  The award of the CIB is announced in permanent orders.

8.  Army Regulation 600-8-22 also provides that 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.  Additionally, 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. 

9.  That regulation also provides, in pertinent part, that the Southwest Asia Service Medal (SWASM) was established 12 March 1991 by Executive Order 12754 from President George Bush and is awarded to any member of the Armed Forces for service in Southwest Asia (SWA) during Operations Desert Shield and Desert Storm.  The wearing of as many as three service stars is authorized.  One during the period of 2 August 1990 to 16 January 1991, a second one for the period of 17 January 1991 to 11 April 1992 and a third one for the period of 12 April 1992 to 30 November 1995.

DISCUSSION AND CONCLUSIONS:

1.  The applicant has failed to show through the evidence presented and the evidence of record that he was awarded the CIB.  Accordingly, absent evidence to the contrary, there is no basis for the Board to do so at this time.

2.  Records show the applicant should have discovered the error or injustice now under consideration on 6 December 1991; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 5 December 1994. However, the applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to file in this case.
3.  However, the evidence shows that the applicant’s records contain administrative error which does not require action by the Board.  Therefore, administrative correction of the applicant's records will be accomplished by the Case Management Support Division (CMSD), St. Louis, Missouri, as outlined by the Board in paragraph 2 of the BOARD DETERMINATION/RECOMMENDATION section below.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

phm_____  lem_____  rwa_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented and the merits of this case are insufficient to warrant the relief requested, and therefore, it would not be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  

2.  The Board determined that administrative error in the records of the individual should be corrected.  Therefore, the Board requests that the CMSD-St. Louis administratively correct the records of the individual concerned to show that he served in SWA from 28 December 1990 through 5 July 1991, that he is entitled to awards of the KLM-K, the KLM-SA, the SWASM with two bronze service stars, and that he was awarded the AAM 1OLC.

		___Lana E. McGlynn___
		        CHAIRPERSON

INDEX

CASE ID	AR2003090949	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20040113	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.  157	107.0111/CIB	
2.  146	107.0100/KLM-SA	
3.  135	107.0089/KLM	
4.  120	107.0074/SWASM	
5.  71	107.0025/AAM	
6.  189	110.0000/CORR 214