RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  16 October 2007
	DOCKET NUMBER:  AR20070005755 


	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.


Ms. Catherine C. Mitrano

Director

Mr. Mohammed R. Elhaj

Analyst

The following members, a quorum, were present:


Ms. Shirley L. Powell

Chairperson

Mr. James E. Anderholm

Member

Mr. Joe R. Schroeder

Member

	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 his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to show his rank as specialist (SPC)/pay grade   E-4 instead of private (PVT)/E-1.  He is also requesting, in effect, that his service in Iraq be recognized by listing all awards entitlements on his DD Form 214.

2.  The applicant states that his military records contain promotion statements that contradict his DD Form 214 as it currently reads.  

3.  The applicant provided a copy of his DD Form 214, a copy of DA Form 4874 [Certificate of Promotion to private first class (PFC)/pay grade E-3], and two self-authored letters to Members of Congress 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests correction of the applicant's DD Form 214 to show the correct grade, service in Iraq in support of Operation Iraqi Freedom, and listing of the applicant's service awards and decorations for Iraq. 

2.  Counsel states that the applicant entered the service on 17 November 2000 and was discharged on 20 December 2003.  Counsel asks the Board to consider all evidence of record used in rendering a fair and impartial decision. 

3.  Counsel assisted the applicant in providing the above supporting documents. 

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 that he enlisted in the Regular Army on 17 November 2000 for a period of 3 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 52D (Power Generator Equipment Repairman).  He was honorably released from active duty on 20 December 2003 in accordance with chapter 4 of Army Regulation 635-200 (Personnel Separations) for completion of required active service.

3.  The applicant's DA Form 2-1 (Personnel Qualification Record), a synopsis of pertinent information concerning a Soldier's career, shows the following:

	a.  Upon completion of all required training, the applicant was transferred to Germany and was assigned to the 77th Maintenance Company.  His DA Form 2-1 does not show any other assignments.

	b.  His date of rank (DOR) to private (PVT)/E-1 was 1 November 2000.  It does not show any other promotions or reductions. 

	c.  He was awarded the Army Service Ribbon and the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16).  It does not show any other awards or decorations.

4.  The applicant's Enlisted Record Brief, an automated synopsis of pertinent career information, shows:

	a.  He was assigned to the 77th Maintenance Company in Germany.

	b.  He was promoted to private first class (PFC)/E-3 on 1 September 2001; he was promoted to specialist (SPC)/E-4 on 1 September 2002; and he was reduced to PVT/E-1 on 19 December 2002.

	c.  He was awarded the National Defense Service Medal and the Army Service Ribbon.

5.  The applicant's records do not contain any orders promoting or reducing him.  A DA Form 4874 provided by the applicant shows that he was promoted to PFC/E-3 on1 September 2001.

6.  Other documents that shed light on the applicant's rank are:

	a.  DA Form 4874 (Certificate of Promotion) showing that he was promoted to PFC/E-3 on 1 September 2001.

	b.  Award Certificate, dated 7 June 2003, showing he was awarded the Army Commendation Medal and showing his rank as PVT.

	c.  Award Certificate, dated 14 September 2003, showing he was awarded the Army Achievement Medal and showing his rank as PVT.

	d.  U.S. Army Europe Orders 165-16, dated 22 September 2003, showing his rank as PFC/E-3.

7.  The applicant's DD Form 214 shows he served honorably during the period 17 November 2000 through 20 December 2003.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized), of the applicant's DD Form 214, shows he was awarded the National Defense Service Medal, the Army Service Ribbon, and the Overseas Service Ribbon.

8.  The applicant's records contain two award certificates:

	a.  On 7 June 2003, the Commander, 16th Corps Support Group, Forward Logistics Base Dogwood, Al Iskandariyah, Iraq, presented the applicant with the Army Commendation Medal for meritorious service during Operation Iraqi Freedom during the period 19 March 2003 through 31 May 2003.  The certificate contains Permanent Orders Number 158-36.

	b.  On 14 September 2003, the Commander, 485th Corps Support Battalion, Hanau, Germany, presented the applicant with the Army Achievement Medal for meritorious service during the period 9 July 2001 through 30 December 2003.  The certificate contains Permanent Orders Number 257-06.

9.  Defense Finance and Accounting Service (DFAS) - Indiana, confirmed that the applicant was deployed to Kuwait/Iraq, in support of Operation Iraqi Freedom, during the period 31 March 2003 through 14 August 2003.  

10.  Army Regulation 635-5 (Separation Documents), 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.  In pertinent part it stated that the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty.  




11.  Army Regulation 635-5 also states, in pertinent part, that Items 4a and 4b will list the current rank and pay grade held at the time of separation.  Item 12h will list from the most recent promotion order (or reduction instrument) the effective date of promotion to the current pay grade. 

12.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions), prescribes the policies and procedures for the promotion and reduction of enlisted Soldiers.  This regulation specifies that the Enlisted Advancement Report is the official instruction used by commanders to recommend a Soldier for promotion to sergeant first class or below.  A DA Form 4187 is prepared and forwarded for approval.  Upon approval, a promotion certificate is prepared and a promotion ceremony is conducted.

13.  Army Regulation 600-8-19 also states in pertinent part that promotions to PV2, PFC, and SPC will be made automatically by the Total Army Personnel database for posting to the automated personnel file and the master military pay file.  Eligibility criteria for automatic promotion to PV2, PFC, and SPC will be as follows: Promotion to PV2 requires 6 months time in service (TIS), to PFC requires 12 months TIS and 4 months time in grade (TIMIG), and to SPC requires 24 months TIS and 6 months TIMIG.

14.  Army Regulation 635-5 governs the preparation of the DD Form 214.  It states, in pertinent part, that Foreign Service performed during the period covered by the DD Form 214 will be entered in item 12f.  The regulation also states that the amount of foreign-service will be taken from the Soldier’s Enlisted Qualification Record or, if necessary, verified from the Soldier’s Military Personnel Records Jacket.  However, for active duty Soldiers deployed with their unit during their continuous period of active service, the entry "SERVICE IN (NAME OF COUNTRY DEPLOYED) from (Inclusive dates for example, YYYYMMDD-YYYYMMDD) will be entered in Item 18 of the DD Form 214.

15.  Military Awards Branch Message, dated 8 April 2005, provided the following implementing instructions for award of the Iraq Campaign Medal.  Award of the Iraq Campaign Medal is authorized for service in direct support of Operation Iraqi Freedom on or after 19 March 2003 to a future date to be determined by the Secretary of Defense or the cessation of the operation.  The area of eligibility encompasses all land area of the country of Iraq and the contiguous sea area out to 12 nautical miles and the air space above these areas.  To qualify for award of this campaign medal, service members must have been assigned or attached to or mobilized with units operating in these areas of eligibility for 30 consecutive days or for 60 non-consecutive days or meet one of the following criteria:  a) be 
engaged in combat during an armed engagement, regardless of the time in the area of eligibility; b) be medically evacuated from the area of eligibility for wounds or injuries resulting from participation in an operation or official duties; or c)  participates as a regularly assigned air crewmember flying sorties into, out of, within or over the area of eligibility in direct support of the military operations [each day of operations counts as one day of eligibility].  This campaign medal may be awarded posthumously.

16.  Only one award of the Iraq Campaign Medal may be authorized for any individual.  Service stars are not prescribed for wear with this medal; however, the Iraq Campaign Medal may be awarded with the bronze arrowhead device to eligible Soldiers.  Effective 30 April 2005, the Global War on Terrorism Expeditionary Medal is no longer authorized to be awarded for service in Iraq; however, service members who qualified for the Iraqi Freedom Medal by reason of service between 19 March 2003 and 30 April 2005 in an area for which the Iraq Campaign Medal was subsequently authorized shall remain qualified for the Global War on Terrorism Expeditionary Medal.  Upon application, any such service member may be awarded the Iraq Campaign Medal in lieu of the Global War on Terrorism Expeditionary Medal for such service; however, no service member shall be entitled to award of the Iraq Campaign Medal and the Global War on Terrorism Expeditionary Medal for the same act, achievement or period of service.

17.  Army Regulation 600-8-22 (Military Awards) states that the Global War on Terrorism Expeditionary Medal (GWOTEM) is authorized for award to members of the Armed Forces of the United States who deployed abroad for service in the Global War on Terrorism Operations on or after 11 September 2001 to a date to be determined.  The general area of eligibility (AOE) encompasses all foreign land, water, and air spaces outside the fifty states of the United States and outside 200 nautical miles of the shores of the United States.  The Secretary of Defense, when recommended by the Chairman, Joint Chiefs of Staff, will designate the specific area of eligibility per qualifying operation.  Service members must be assigned, attached or mobilized to a unit participating in designated operations for 30 consecutive days or 60 nonconsecutive days in the AOE.

18.  Human Resources Command Message (Date Time Group 17 March 2004) disseminated implementing instructions for award of the Global War on Terrorism Service Medal.  This award is designated for Soldiers who have participated in or served in support of Global War on Terrorism Operations outside of the designated area of eligibility determined for award of the Global War on 
Terrorism Expeditionary Medal on or after 11 September 2001 to a date to be determined.  All Soldiers on active duty, including Reserve Component Soldiers mobilized or National Guard Soldiers activated, on or after 11 September 2001 to a date to be determined having served 30 consecutive days or 60 nonconsecutive days are authorized this award. 

19.  Soldiers may receive both the Global War on Terrorism Service Medal and the Global War on Terrorism Expeditionary Medal if they meet the requirements of both awards; however, the same period of service establishing one cannot be used to justify service eligibility for the other

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he is entitled to correction of his records to show his rank as SPC/E-4 and that his service awards be listed on his DD Form 214.

2.  The evidence of record is sparse and contradictory concerning the applicant's rank at the time of his separation from the Army.  There are no promotion or reduction orders in his records; yet, the record shows promotion to SPC/E-4 on 1 September 2002 and it also shows reduction to PVT/E-1 on 19 December 2002.  Both award certificates show his rank as PVT/E-1 in June and September 2003, but his reassignment Orders to the U.S. Army Transition Point shows his rank as PFC/E-3 on 22 September 2003.

3.  It is clear that the applicant's rank fluctuated.  Most probably his reductions were as a result of misconduct for which he accepted nonjudicial punishment (NJP) under Article 15 of the Uniformed Code of Military Justice (UCMJ).  Although the last piece of documentary evidence shows his rank as PFC on 22 September 2003, it is possible he was reduced between that date and his separation date on 20 December 2003.  In any event, the Board presumes regularity in regards to his rank on the DD Form 214.  Therefore, he is not entitled to relief.

4.  The applicant's records contain a certificate with Permanent Orders 158-36, dated 7 June 2003, awarding him the Army Commendation Medal.  Therefore, he is entitled to correction of his records to show this award.

5.  The applicant's records contain a certificate with Permanent Orders 257-06, dated 14 September 2003, awarding him the Army Achievement Medal. Therefore, he is entitled to correction of his records to show this award.


6.  The applicant was deployed to Kuwait/Iraq during the period 31 March 2003 through 14 August 2003.  Therefore he is entitled to amendment of Item 18 (Remarks) of the DD Form 214 to show "Service in Kuwait/Iraq from 20030331 - 20030814."  Additionally, he is entitled to correction of Item 12(f) (Foreign Service) to show "0000 04 15."

7.  The applicant served a qualifying period of service for award of the Global War on Terrorism Service Medal.  Therefore, he is entitled to correction of his records to show this award.

8.  The applicant served a qualifying period of service for award of the Iraq Campaign Medal.  Therefore, he is entitled to correction of his records to show this award.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__slp___  __jea___  __jrs___  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 by 

	a.  showing award of the Army Commendation Medal, the Army Achievement Medal, the Global War on Terrorism Service Medal, and the Iraq Campaign Medal;

	b.  entering the period "0000 04 15" in Item 12f (Foreign Service) to indicate the applicant's overseas service; and

	c.  entering "Service in Kuwait/Iraq from 20030331 - 20030814" in Item 18 (Remarks) to show his service in those countries.



2.  The Board further determined that the evidence presented in 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 correction of the records of the individual concerned to show his grade as SPC/E-4.



							Shirley L. Powell
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20070005755
SUFFIX

RECON

DATE BOARDED
20071016
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
(GRANT)
REVIEW AUTHORITY

ISSUES         1.
100.0000
2.

3.

4.

5.

6.