IN THE CASE OF:	  

	BOARD DATE:	  19 June 2008

	DOCKET NUMBER:  AR20080002700 


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 DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 6 March 2004 to show the Army Good Conduct Medal, the Purple Heart, the Distinguished Service Medal, combat badges, any overseas medals, and any medals in support of Operation Iraqi Freedom.  

2.  The applicant states, in effect, that these medals should be placed on his DD Form 214.  

3.  The applicant provides a copy of his DD Form 214 for the period ending 6 March 2004; several medical documents; a portion of a Department of Veterans Affairs (DVA) Rating Decision, dated 1 September 2004 with a Statement in Support of Claim; his DVA Compensation and Pension Exam Report; five congressional letters; a letter from the National Personnel Records Center (NPRC), dated 21 April 2006; and email message from NPRC; a calendar; a letter from a fellow Soldier, dated 15 March 2007; an undated certificate for the Distinguished Service Medal; and a Radiology/Nuclear Medicine Report.  

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 initially enlisted in the Army National Guard on 6 May 1982.  He was ordered to active duty training (ADT) on 6 December 1982 and was honorably released from ADT on 6 April 1983.  He was transferred back to his National Guard unit on the following date.  His DD Form 214 for the period ending 6 April 1983 shows the Army Service Ribbon as an authorized award.  

3.  He continued to serve in the Army National Guard until 8 January 1985.  On the following date, he was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement).  

4.  The applicant enlisted in the Army National Guard on 27 September 1996 and was discharged on 26 September 2002.

5.  The applicant enlisted in the Army National Guard on 6 February 2003.  He was ordered to active duty under Title 10, United States Code, Section 12302 on 7 February 2003 in support of Operation Enduring Freedom/Operation Iraqi Freedom.  

6.  He served in Iraq from 10 March 2003 to 30 October 2003.  

7.  The applicant provided a calendar covering the period April 2003 through March 2004.  He indicates the days of mortar round attacks and fire fights in the months of May 2003, June 2003, July 2003, August 2003, September 2003, and October 2003.

8.  His Chronological Record of Medical Care shows he sustained trauma to his right shoulder after falling into a hole.  His injury was identified as a non-battle injury.  

9.  His Chronological Record of Medical Care also shows he was reexamined for pain in his right shoulder.  This medical record shows he was placed on temporary profile from 30 June 2003 to 28 July 2003 for joint pain, localized.  His injury was caused by recreational sports and was identified as a non-battle injury.

10.  The applicant was honorably released from active duty on 6 March 2004 and was transferred to his National Guard unit on the following date.  His DD Form 214 for the period ending 6 March 2004 shows he completed 7 months and 21 days of foreign service.  

11.  His DD Form 214 for the period ending 6 March 2004 shows the Army Commendation Medal, the Army Achievement Medal (Second Award), the National Defense Service Medal, the Armed Forces Reserve Medal with “M” Device, and the Army Service Ribbon as authorized awards.  

12.  The applicant’s record does not contain evidence, nor has he provided sufficient evidence that show he qualified for and was awarded the Combat Action Badge (CAB).  Likewise, he has not shown that he has exhausted his administrative remedy for award of the CAB by making application to the U.S. Army Human Resources Command, Alexandria, VA.  He has been advised by letter how to request retroactive award of the CAB.  Therefore, this matter will not be further discussed in these Proceedings.

13.  The applicant provided a Compensation and Pension Exam Report which shows he was examined on 7 October 2005 at the Veterans Army Medical Center, Wilmington.  He was diagnosed as having Post Traumatic Stress Disorder, chronic pain because of a plate in his neck, arthritis, and tendinitis.

14.  The applicant provided an undated certificate which shows he was awarded the State of New Jersey Distinguished Service Medal for distinguished meritorious service in ground operations during Operation Iraqi Freedom in the Southwest Asiatic Theater of Operations.

15.  Army Regulation 600-8-22 (Military Awards) provides that the Good Conduct Medal is awarded to individuals who distinguish themselves by their conduct, efficiency and fidelity during a qualifying period of active duty enlisted service.  This regulation states the personnel eligible for the Army Good Conduct Medal include Ready Reserve enlisted personnel ordered to active duty under Title 10, United States Code.  The Army Good Conduct Medal was awarded for each 3 years of continuous enlisted active Federal military service completed on or after 27 August 1940, for first award only, 1 year served entirely during the period 7 December 1941 to 2 March 1946 and, for the first award only, upon termination of service on or after 27 June 1950 of less than 3 years but more than 1 year.  


16.  Army Regulation 600-8-22 provides, in pertinent part, that the Purple Heart is awarded for a wound sustained while in action against an enemy or as a result of hostile action.  Substantiating evidence must be provided to verify that the wound was the result of hostile action, the wound must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record.  Paragraph 2-8b(2) states that for the purpose of considering an award of the Purple Heart, a “wound” is defined as an injury to any part of the body from an outside force, element, or agent sustained while in action in the face of the armed enemy or as a result of a hostile act of such enemy.  The regulation states that the key issue that commanders must take into consideration is the degree to which the enemy caused the injury.  The fact 
that the proposed recipient was participating in direct or indirect combat operations is a necessary prerequisite, but is not sole justification for award.  

17.  Army Regulation 600-8-22 states that the Global War on Terrorism Service Medal (GWOTSM) is authorized for award to members of the Armed Forces of the United States who have participated in the Global War on Terrorism (GWOT) operations outside of the designated areas of eligibility (AOE), on or after 11 September 2001 to a future date to be determined.

18.  Army Regulation 600-8-22 states that individuals authorized the Iraq Campaign Medal must have served in direct support of Operation Iraqi Freedom. The area of eligibility encompasses all land area of the country of Iraq, and the contiguous water area out to 12 nautical miles, and all air spaces above the land area of Iraq and above the contiguous water area out to 12 nautical miles.  The Iraq Campaign Medal period of eligibility is on or after 19 March 2003 to a future date to be determined by the Secretary of Defense or the cessation of Operation Iraqi Freedom.  A bronze service star is authorized for the Liberation of Iraq (19 March 2003 to 1 May 2003); the Transition of Iraq (2 May 2003 to 28 June 2004); the Iraqi Governance (29 June 2004 to 15 December 2005); and the National Resolution (16 December 2005 to a date to be determined).

19.  A Frequently Asked Questions document from the Human Resources Command (HRC), Military Awards Branch, dated 22 January 2006, contains examples to show Soldiers’ eligibility for awards while deployed to Iraq.  The document states “Question:  Can I be awarded the OSR for being in Iraq?  Answer:  Soldiers are authorized to be awarded the OSR upon completion of a “normal overseas tour as IAW [in accordance with] AR [Army Regulation] 
614-30.”


20.  The document states “Question:  How long do I have to serve in Iraq or Afghanistan to be awarded the Overseas Service Ribbon?  Answer:  Overseas tour credit is outlined in Army Regulation 614-30 (Overseas Service).”  Provided is a clarification statement the proponent to Army Regulation 614-30 has provided our office:  “Soldiers who serve a minimum of 11 cumulative months or 9 continuous months in Iraq in a temporary change of station/tour of duty status get credit for a completed short tour.  Your reference is Army Regulation 614-30, Tables 3-2, rules 5 and 7.  Iraq and Afghanistan are considered isolated areas where tour lengths have not been established by Department of Defense; therefore, the Army gives equivalent credit for periods of change of station/tour of duty.”

21.  The document also states “Question:  I am a Reserve Component Soldier mobilized onto active duty.  I deployed to Iraq for 12 consecutive months.  Am I authorized normal overseas tour credit and award of the OSR?  Answer:  Overseas tour credit is outlined in AR 614-30.  If you are given credit, yes you are authorized the OSR.  Provided is a clarification statement the proponent to Army Regulation 614-30 has provided our office:  “AR 614-30 indicates that various categories of Reserve Component (ARNG and USAR) Soldiers serving on Active Duty (e.g., AGR, Mobilized, Extended Active Duty) are subject to the provisions of the Regulation.  Consequently, if subject to the provisions of AR 614-30 these RC Soldiers would be eligible for tour credit if they met the provisions of Table 3-2, AR 614-30.  The posting of their records would be in accordance with the provisions of AR 600-8-14.”

22.  Army Regulation 635-5 prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  In pertinent part, it states awards and decorations for all periods of service in the priority sequence specified in Army Regulation 600-8-22, as verified by the Soldier’s records, will be entered in item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized).

23.  State awards are not listed in Army Regulation 600-8-22.

DISCUSSION AND CONCLUSIONS:

1.  The applicant served on active duty from 7 February 2003 through 6 March 2004 which is a period of 1 year and 1 month of active service.  Therefore, he meets the regulatory requirements for the first award of the Army Good Conduct Medal.  

2.  The applicant’s medical documents were carefully reviewed.  However, they do not verify that the applicant was wounded or injured as a result of hostile action.  His Chronological Record of Medical Care shows he injured his shoulder after falling into a hole and that it was a non-battle injury.  Therefore, there is insufficient evidence on which to base award of the Purple Heart in this case.

3.  The applicant provided a certificate which shows he was awarded the State of New Jersey Distinguished Service Medal for service during Operation Iraqi Freedom.  However, State awards are not listed in Army Regulation 600-8-22 and therefore it is not authorized for entry on the DD Form 214.

4.  The applicant served a period of qualifying service in support of Operation Iraqi Freedom for award of the GWOTSM and the Iraq Campaign Medal with two bronze service stars.  Therefore, his DD Form 214 for the period ending 6 March 2004 should be amended to show the GWOTSM and the Iraq Campaign Medal with two bronze service stars.

5.  The applicant’s DD Form 214 shows he completed 7 months and 21 days of foreign service.  In accordance with Army Regulation 614-30, Soldiers who serve a minimum of 11 cumulative months or 9 continuous months in Iraq in a temporary change of station/tour of duty status get credit for a completed short tour.  The applicant did not meet the minimum tour length credit for award of the Overseas Service Ribbon; therefore, he is ineligible for this medal.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

xx______  xx______  xx______  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 the DD Form 214 for the period ending 6 March 2004 of the individual concerned be corrected by:

      a.  awarding him the first award of the Army Good Conduct Medal for the period 7 February 2003 through 6 March 2004; and 
      b.  adding the Army Good Conduct Medal, the GWOTSM, and the Iraq Campaign Medal with two bronze service stars.

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 award of the Purple Heart, the Overseas Service Ribbon, and the State of New Jersey Distinguished Service Medal.




xxxxxxx______   ___
       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)                                         AR20080002700





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