IN THE CASE OF:	  

		BOARD DATE:	  25 September 2008

		DOCKET NUMBER:  AR20080008907 


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, in effect, that the Armed Forces Expeditionary Medal (AFEM), Combat Infantryman Badge (CIB), and Bronze Star Medal (BSM) should be added to his separation document (DD form 214).  

2.  The applicant states, in effect, that his separation document should be corrected to document the awards he earned for his service in Bosnia.

3.  The applicant provides a Statement in Support of Claim (VA Form 21-4138), DD Form 214 Worksheet, and various certificates (award, appreciation, and achievement) in support of his application.  

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 record shows he enlisted in the Regular Army and entered active duty on 17 January 1996, and was trained in and awarded military occupational specialty (MOS) 11C (Indirect Fire Infantryman).

3.  The applicant’s Personnel Qualification Record (DA Form 2-1) contains a blank entry in Item 5 (Oversea Service).  Item 9 (Awards and Decorations) shows he earned the following awards:  Army Service Ribbon (ASR); National Defense Service Medal (NDSM); North Atlantic Treaty Organization (NATO) Medal; Armed Forces Service Medal (AFSM); Expert Marksmanship Qualification with Mortar and Grenade Bars; and Marksman Marksmanship Qualification Badge with Rifle Bar (M-16).

4.  The applicant's Official Military Personnel File (OMPF) contains an Army Achievement Medal (AAM) certificate that confirms he was awarded the AAM for meritorious service while deployed as a mortarman in support of Operation Joint Guard (OJG) in Bosnia-Herzegovina from 19 March to 6 November 1997.  The OMPF is void of any orders, or other documents indicating that he was ever recommended for or awarded the CIB or BSM by proper authority while serving on active duty.  It is also void of any documentation that shows he ever engaged in active ground combat with enemy forces while on active duty.

5.  On 8 May 1998, the applicant was honorably released from active duty (REFRAD) by reason of completion of required service.  The DD Form 214 he was issued on the date of his REFRAD confirms he completed 2 years, 3 months, and 22 days of active military service.  Item 13 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) shows he earned the following awards during his active duty tenure:  AFSM; NATO Medal; AAM; ASR; Expert Marksmanship Qualification with Mortar and Grenade Bars; and Marksman Marksmanship Qualification Badge with Rifle Bar (M-16).  

6.  The applicant provides five certificates awarded to him for his meritorious or outstanding service in support of the peace-keeping mission in the Former Republic of Yugoslavia.

7.  Army Regulation (AR) 600-8-22 (Military Awards) prescribes the Army’s military awards policy.  Paragraph 2-12, provides, in pertinent part, that the AFEM is authorized for participants in military operations within a specific geographic area during a specified time period.  An individual, who was not engaged in actual combat or equally hazardous activity, must have participated in operations or in direct support of operations for 30 consecutive or 60 nonconsecutive days.  Table 2-3 contains a list of those designated military 
operations established in direct support of the United Nations authorized to receive the AFEM. This list includes Bosnia-Herzegovina (The Former Republic of Yugoslavia).

8.  Paragraph 3-14 of the awards regulation provides, in pertinent part, that the BSM is awarded in time of war for heroism and for meritorious achievement or service.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.  Recommendations must be made within 2 years of the event or period of service and the award must be made within 3 years.  

9.  Chapter 8 of the awards regulation contains guidance on award of badges and tabs.  It states, in pertinent part, that there are three basic requirements for the CIB.  A member must have held and served in an infantry MOS, he must have served with an infantry unit of brigade, regimental, or smaller size, and he must have been personally present and participated with his qualifying infantry unit while it was engaged in active ground combat.

10.  AR 635-5 (Separation Documents) prescribes the separation documents that are prepared for individuals upon retirement, discharge, or release from active military service or control of the Army.  It also establishes standardized policy for preparing and distributing the DD Form 214.  Chapter 2 contains guidance on preparing the DD Form 214.  The instructions for Item 13 are to list awards and decorations for all periods of service in the priority sequence specified I AR 600-8-22.  Each entry will be verified by the Soldier’s records.

11.  AR 635-5 also states, in pertinent part, that for an active duty Soldier deployed with his or her unit during their continuous period of active service, the statement "SERVICE IN (NAME OF COUNTRY DEPLOYED) FROM (inclusive dates for example, YYYYMMDD - YYYYMMDD)" will be entered in item 18 (Remarks). 

12.  Title 10 of the United States Code, section 1130 (10 USC 1130) provides the legal authority for consideration of proposals for decorations not previously submitted in timely fashion.  It allows, in effect, that upon the request of a Member of Congress, the Secretary concerned shall review a proposal for the award or presentation of a decoration (or the upgrading of a decoration), either for an individual or a unit, that is not otherwise authorized to be presented or awarded due to limitations established by law or policy for timely submission of a recommendation for such award or presentation.  Based upon such review, the Secretary shall make a determination as to the merits of approving the award or presentation of the decoration.


DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he is entitled to the AFEM based on his service in Bosnia was carefully considered and found to have merit.   The evidence of record confirms he served in Bosnia from 19 March 1997 through 
6 November 1997, as evidenced by the AAM Certificate contained in his OMPF. As a result, it would be appropriate to add this award to his record and separation document at this time.  It would also be appropriate to add an entry in Item 18 of his DD Form 214 that documents his service in Bosnia.  

2.  The applicant’s claim of entitlement to the CIB was also carefully considered.  However, in order to support award of the CIB, there must be evidence that a member not only held an infantry MOS and served in a qualifying infantry unit of brigade, regimental or smaller size; it must also show that he was present with the unit at a time when it engaged in active ground combat, and that he actively participated in such ground combat as an infantry Soldier.  The evidence of record and independent evidence he provides fails to confirm he ever participated with his unit while it was engaged in active ground combat with enemy/hostile forces.  As a result, the regulatory burden of proof necessary to support award of the CIB has not been satisfied in this case. 

3.  The evidence of record also fails to show that the applicant was ever recommended for or awarded the BSM while serving on active duty.  Lacking any evidence to show the applicant was recommended for, or awarded the BSM by proper authority, there is an insufficient evidentiary basis to support granting this portion of the requested relief.  

4.  While the available evidence is insufficient for awarding the applicant a Bronze Star Medal, this in no way affects the applicant’s right to pursue his claim for the Bronze Star Medal by submitting a request through his/her Member of Congress under the provisions of 10 USC 1130.


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 showing his entitlement to the Armed Forces Expeditionary Medal; by adding the entry “SERVICE IN BOSNIA-HERZEGOVINA (THE FORMER REPUBLIC OF YUGOSLAVIA) FROM 19970319-19971106”; and by providing him a correction to his separation document that reflects these changes.  

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 and the Bronze Star Medal to his record and separation document.



      _________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)                                         AR20080008907



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ABCMR Record of Proceedings (cont)                                         AR20080008907


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