IN THE CASE OF:	

		BOARD DATE:	  10 February 2009

		DOCKET NUMBER:  AR20080009375 


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 his separation document (DD Form 214) be corrected to add his foreign service, his tour in Iraq, his three or four Army Commendation Medals (ARCOMs), his three or four Army Achievement Medals (AAMs), his Presidential Unit Citation (PUC), his Combat Infantryman Badge (CIB), his Iraqi Freedom Medal, his Afghanistan Freedom Medal, his Global War On Terrorism Service Medal, his Overseas Service Ribbon, and his Army Good Conduct Medal (AGCM).

2.  The applicant states that he returned from Iraq without his unit and was rushed through the separation process.  About a year later he realized that a lot of information was missing from his DD Form 214.  He has been trying unsuccessfully to add the missing information since then.

3.  The applicant provides documents showing he was approved to leave Iraq on 28 November 2003 to be separated at the expiration of his term of service; group orders dated 30 January 2003; a message with a date time group of 270900ZAPR03 which authorized the combat patch and overseas service bars to personnel deployed to CENTCOM; and a memorandum dated 10 December 2003 in which the applicant was ordered to report for Reserve Components counseling.

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 only documents contained on the integrated Personnel Electronic Records Management System (iPERMS) pertaining to the applicant's service in the Regular Army is an enlistment contract, a Veteran's Education Assistance Act of 1984 (GI Bill) form, and his DD Form 214.

3.  The applicant's DD Form 214 shows that he enlisted in the Regular Army on 2 February 2001.  He was awarded the military occupational specialty of infantryman, and was promoted to pay grade E-4.

4.  The applicant was released from active duty on 1 February 2004.  The DD Form 214 he was issued does not show any foreign service or service in Iraq.  It does list the Army Lapel Button, National Defense Service Medal, and the Army Service Ribbon.

5.  There are no orders or award recommendations in iPERMS for award of the ARCOM, AAM, CIB, AGCM or any other award or decoration.

6.  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.

7.  Army Regulation 600-8-22 provides that the AAM is awarded to any member of the armed forces of the United States, who while serving in a noncombat area on or after 1 August 1981 distinguished themselves by meritorious service or achievement.

8.  Army Regulation 600-8-22 also provides that, effective 1 August 1981, all active members of the Army who successfully complete an overseas tour are eligible for the Oversea Service Ribbon.  Completion of an oversea tour must be in accordance with Army Regulation 614-30.  The ribbon may be awarded retroactively to those who qualified prior to 1 August 1981 only if they had an active Army status on or after that date.

9.  Army Regulation 600-8-22 also provides, in pertinent part, that the CIB is awarded to infantry officers and to enlisted and warrant officer personnel who have an infantry military occupational specialty.  They must have served satisfactorily in active ground combat and while assigned or attached to an infantry unit of brigade, regimental or smaller size.

10.  Army Regulation 600-8-22 provides that the AGCM is awarded to those individuals who distinguish themselves by their conduct, efficiency and fidelity during a 3 year period of service.  Although there is no automatic entitlement to the AGCM, disqualification must be justified.  Any case of unfavorable consideration requires the immediate commander to notify the individual of the rationale for the decision and permits the member to respond.  This action is to be filed in the Soldier's official military personnel file.

11.  Army Regulation 600-8-22 provides that the ARCOM may be awarded to any member of the Armed Forces of the United States who, while serving in any capacity with the Army after 6 December 1941, distinguished himself by heroism, meritorious achievement or meritorious service.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

12.  Army Regulation 600-8-22 does not list the Iraqi Freedom Medal or the Afghanistan Freedom Medal.

13.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  In pertinent part, it directs that when an active duty Soldier is deployed with his or her unit during the period covered by the DD Form 214, an entry will be made in Item 18 to show "SERVICE IN (NAME OF COUNTRY DEPLOYED) FROM (inclusive dates for example, YYYYMMDD – YYYMMDD)."  This same regulation states that a Soldier's foreign service is entered in block 12f in year, month, and day format.

14.  Headquarters, U.S. Army Human Resources Command message, dated 17 March 2004, announced implementing instructions for the Global War on Terrorism Expeditionary Medal (GWOTEM) and the Global War on Terrorism Service Medal (GWOTSM).  In pertinent part, the message states that these medals will be awarded to recognize all members of the armed forces of the United States serving in or in support of the Global War on Terrorism operations, on or after 11 September 2001 to date to be determined. 

15.  Initial award of the GWOTEM is limited to Soldiers deployed abroad in operations Enduring Freedom and Iraqi Freedom in the following Department of Defense designated specific geographic areas of eligibility: Afghanistan, Bahrain, Bulgaria (Bourgas), Crete, Cyprus, Diego Garcia, Djibouti, Egypt, Eritrea, Ethiopia, Iran, Iraq, Israel, Jordan, Kazakhstan, Kenya, Kuwait, Kyrgyzstan, Lebanon, Pakistan, Philippines, Qatar, Romania (Constantan), Saudi Arabia, Somalia, Syria, Tajikistan, Turkey (east of 35 degrees east latitude) Turkmenistan, United Arab Emirates, Uzbekistan, Yemen, that portion of the Arabian Sea north of 10 degrees north latitude and west of 68 degrees longitude, Bab El Mandeb, Gulf of Aden, Gulf of Aqaba, Gulf of Oman, Gulf of Suez, that portion of the Mediterranean Sea east of 28 degrees east longitude, Persian Gulf, Red Sea, Strait of Hormuz, and Suez Canal.  To be eligible, for the GWOTEM a Soldier must be assigned, attached or mobilized to a unit participating in designated operations for 30 consecutive days or 60 nonconsecutive days.

16.  Award of the GWOTSM is authorized to Soldiers who have participated in or served in support of Global War on Terrorism operations outside of the designated area of operations as outlined in paragraph five above.  Initial award of the GWOTSM will be limited to airport security operations (from 27 September 2001 through 31 May 2002) and Soldiers who supported Operations Noble Eagle, Enduring Freedom, and Iraqi Freedom.  As with the GWOTEM, a Soldier must have served 30 consecutive, or 60 nonconsecutive days.  HRC Awards Branch personnel have advised that the GWOTSM has been awarded, and will continue to be awarded, to all Army personnel who serve on active duty for 30 consecutive days, or more, regardless of where they serve (the same criteria as the National Defense Service Medal).

17.  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.

18.  In the processing of this case, the Board's staff contacted the Defense Finance and Accounting Service (DFAS).  The DFAS stated that the applicant served in Kuwait from 1 April to 30 November 2003.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's DD Form 214 confirms that he was serving on active duty during a time which would qualify him for the GWOTSM.  As such, it would be appropriate to now add that award.  

2.  The applicant's records do not contain any orders or award recommendations for the ARCOM or the AAM.

3.  In this regard, the Board reviews a case with a presumption of regularity; that what the Army did was proper and just.  The burden to prove otherwise rests with the applicant.

4.  Since the applicant has not overcome this burden of proof, there is no basis for granting his request.

5.  While the available evidence is insufficient for awarding the applicant an ARCOM or AAM, this in no way affects the applicant’s right to pursue his claim for the ARCOM or AAM by submitting a request through his Member of Congress under the provisions of 10 USC 1130.

6.  While there is no evidence to show how long the applicant was in Iraq (DFAS could only confirm the dates he was entitled to imminent danger pay [IDP] and the country he was in that first established his entitlement to IDP.  The DFAS does not record the movement of personnel within IDP areas), the fact that the documents he submitted show that he was stationed in Iraq would lead one to believe that the applicant was in Iraq for the time required for the Iraq Campaign Medal.  As such, it would be appropriate to correct his DD Form 214 to add this award.

7.  There is no evidence to show that the applicant successfully completed an overseas tour.  To the contrary, the applicant states that he did not complete his tour with his unit.  As such, he is not eligible for the Oversea Service Ribbon.  

8.  There is no evidence to show that the applicant served satisfactorily in active ground combat and while assigned or attached to an infantry unit of brigade, regimental or smaller size.  As such, there is insufficient evidence in which to award him the CIB.

9.  Since there is no record to show what unit the applicant was assigned to in Iraq or the dates of his service with that unit, there is insufficient evidence in which to award him the PUC.

10.  Since it is evident that iPERMS is missing a good deal of the applicant's military records, it is impossible to determine whether the applicant was disqualified for the AGCM.  In the absence of complete military records, an assumption cannot be made that the lack of the AGCM was an error.  

11.  Since the exact dates of the applicant's foreign service are unknown, and the exact dates of his service in Iraq are unknown (IDP is paid in full months), there are insufficient records in which to correct his dates of foreign service or to add his Iraq service to his DD Form 214.

12.  Since Army Regulation 600-8-22 does not list the Iraqi Freedom Medal or the Afghanistan Freedom Medal, there is no basis for considering this portion of the applicant's request.

13.  In view of the foregoing, it would be appropriate to correct the applicant's records as recommended below.

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 to add the GWOTSM and the Iraq Campaign Medal to his DD Form 214.

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 his foreign service, his tour in Iraq, his three or four ARCOMs, his three or four AAMs, his PUC, his CIB, his Iraqi Freedom Medal, his Afghanistan Freedom Medal, his Overseas Ribbon, and his AGCM.  




      _______ _ 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)                                         AR20080009375



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ABCMR Record of Proceedings (cont)                                         AR20080009375



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