IN THE CASE OF:	  

		BOARD DATE:	        03 FEBRUARY 2009

		DOCKET NUMBER:  AR20080016188 


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 two applications, that his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to show that he:

	a.  completed his first full term of service;

	b.  served in military occupational specialty (MOS) 11B (Infantryman) for 
3 years;

	c.  served in Kuwait from 4 December 1998 to 12 May 1999; and 

	d.  served in Bosnia-Herzegovina and Kosovo from November 1999 to November 2000.

2.  The applicant essentially states that he did complete his first full term of service.  He also states that item 11 (Primary Specialty) of his DD Form 214 only shows that he served in MOS 11B for 2 years and 8 months, and not 3 years.  He also contends that his service totaled 3 years when his leave is factored in.  
Additionally, he states that he deployed with his unit to Bosnia-Herzegovina and Kosovo, and that he was one of the few that deployed to Kuwait in support of Operation Desert Fox to defend Patriot missile sites.  

3.  The applicant provides his DD Form 214, the first page of a Department of Veterans Affairs (DVA) Rating Decision, dated 8 September 2008, the first page of his DA Form 2-1 (Personnel Qualification Record – Part II), two photographs he claims show him with his unit in Bosnia-Herzegovina and Iraq, an undated third-party letter from a former Soldier, an undated and unsigned self-authored letter addressed to the National Personnel Records Center, and orders, dated 
2 April 2001, which discharged him from the Regular Army on 12 May 2001 in support of this application.  Although the applicant essentially states that he provided awards for being overseas, statements from family members, and statements from doctors who saw him when he was injured overseas and a therapist he speaks to about post-traumatic stress disorder, none of these documents were among the evidence received with his two applications.

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 military records show that he enlisted in the Regular Army on 3 June 1998 for a period of 3 years. He completed initial entry training and was awarded MOS 11B.  He was then reassigned to Fort Drum, New York, and assigned to the 4th Battalion, 31st Infantry Regiment.  On 12 May 2001, he was honorably discharged with disability severance pay after completing 2 years, 
11 months, and 10 days of his 3-year enlistment.  Item 11 of his DD Form 214 shows that he served in MOS 11B for 2 years and 8 months.  Item 18 (Remarks) of this document contains, in part, the entry "Member has not completed first full term of service."  Item 18 also does not contain entries showing that he deployed, and item 12f (Foreign Service) does not show that he had any foreign service.

3.  The applicant provided the first page of a DVA Rating Decision, dated 
8 September 2008, and highlighted a statement which shows that he was a veteran of the Gulf War era, and that he served in the Army from 3 June 1998 to 12 May 2001.  He also highlighted a statement that he has major degenerative joint disease.  Additionally, he affixed an index card to this document and stated that this document confirms that he is a Gulf War veteran.

4.  The applicant also provided the first page of his DA Form 2-1, which differed from the DA Form 2-1 present in his official military personnel file in that it has additional improperly entered entries showing that he served in Baghdad, Iraq from 1998 to 1999 and Bosnia-Herzegovina from 1999 to 2000.  It also has improperly entered entries showing that he was awarded the Meritorious Service Medal and the Ranger Tab.  He also affixed an index card to this document in which he essentially stated that the first page of his DA Form 2-1 verifies his deployments to Bosnia-Herzegovina and Baghdad, Iraq.

5.  Additionally, the applicant provided, in pertinent part, an undated third-party letter from a former Soldier who essentially stated that the applicant deployed to Kuwait in support of Operation Desert Fox.

6.  An inquiry to the Defense Finance and Accounting Service revealed that the applicant did not receive any pay, such imminent danger pay, hostile fire pay,  foreign duty pay, or hardship duty pay (which superseded foreign duty pay effective 4 February 1999) during his active duty service.

7.   Information related to the applicant's disability processing essentially shows that he fractured his elbow at Fort Drum, New York on 2 December 1998.  Further, the applicant was issued a physical profile on 11 October 2000 at the Conner Troop Medical Clinic at Fort Drum, New York.  A 20 October 2000 statement from his commander also indicated that the applicant's injured elbow prevented him from repeatedly firing his weapon and, that at the time, he was serving as the company's training room NCO handling day-to-day administrative tasks.  
 
8.  Army Regulation 635-5 (Separation Documents) provides guidance on the preparation of the DD Form 214.  This regulation specifies, in pertinent part, that in block 18, a mandatory entry of “Soldier (has) (has not) completed first full term of service” will be entered.  This information assists the State in determining eligibility for unemployment compensation entitlement.  This regulation also states, in pertinent part, that routinely, a Soldier should not be considered to have completed the first full term of active service if separation occurs before the end of the initial contracted period of service.  To determine if an enlisted Soldier has completed the first full term of enlistment, refer to the enlistment document and compare the term of enlistment to the net service in block 12c (Net Active Service This Period) of the DD Form 214.  If Soldier completed or exceeded the initial enlistment, enter “has.”  If block 12c of the DD form 214 is less than the Soldier’s commitment, enter “has not.”

9.  Army Regulation 635-5 also provides, in pertinent part, that for item 11 of the DD Form 214, the titles of all MOS or area of concentration (AOC) served for at least 1 year and the number of years and months served in the MOS is to be entered.  For time determination, 16 days or more count as a month.  It also provides that initial entry training (basic and advanced individual training or 
one-station unit training) is not to be counted.

10.  This same regulation provides, in pertinent part, that for a Reserve Soldier ordered to active duty and deployed to a foreign country, enter the following three statements in succession in item 18.  However, for an active duty Soldier 
deployed with his or her unit during their continuous period of active service, enter only the second statement:   

	a.  "ORDERED TO ACTIVE DUTY IN SUPPORT OF (OPERATION NAME) PER 10 USC (applicable section)";

	b.  "SERVICE IN (NAME OF COUNTRY DEPLOYED) FROM (inclusive dates for example, YYYYMMDD - YYYYMMDD)"; and

	c.  "SOLDIER COMPLETED PERIOD FOR WHICH ORDERED TO ACTIVE DUTY FOR PURPOSE OF POST-SERVICE BENEFITS AND ENTITLEMENTS."

11.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DD Form 214 should be corrected to show that he:

	a.  completed his first full term of service;

	b.  served in MOS 11B for 3 years;

	c.  served in Kuwait from 4 December 1998 to 12 May 1999; and 

	d.  served in Bosnia-Herzegovina and Kosovo from November 1999 to November 2000.

2.  As the applicant only completed 2 years, 11 months, and 10 days of his 
3-year active duty commitment from his enlistment contract, he clearly did not complete his first full term of service.  His contention that his service totaled 
3 years when his leave was factored in was considered.  However, any leave that the applicant possibly took in conjunction with his discharge could only have been taken prior to his discharge on 12 May 2001.  As a result, there is no basis for correcting his DD Form 214 to show that he completed his first full term of service.

3.  While the applicant contends that item 11 of his DD Form 214 should show that he served in MOS 11B for 3 years, the time he spent in initial entry training is not counted when determining the number of years and months he served in MOS 11B.  The entry in item 11 of his DD Form 214 appears to accurately reflect how long he served in MOS 11B and, as a result, there is no basis for correcting it.

4.  The applicant's contention that he deployed to Kuwait and/or Iraq from 
4 December 1998 to 12 May 1999 and Bosnia-Herzegovina and Kosovo from November 1999 to November 2000 was considered, but not found to have merit.
An inquiry to the DFAS reveals that the applicant did not receive any type of pay for service outside the continental United States at any time during his military service.  Also, while the applicant provided photographs he claims show him in Iraq and Bosnia-Herzegovina, there is nothing in these photographs which establishes that they were taken where he claims they were taken, or that he is the Soldier he claims to be in these pictures.  Additionally, information related to the applicant's disability processing essentially shows that he fractured his elbow at Fort Drum, New York on 2 December 1998, and while the applicant might have been scheduled to deploy at the time, he likely did not because of this injury.  Further, as the applicant was issued a physical profile on 11 October 2000 at the Conner Troop Medical Clinic at Fort Drum, he could not possibly have been deployed to Bosnia-Herzegovina or Kosovo from November 1999 to November 2000 as he claims.  A 20 October 2000 statement from his commander also indicated that the applicant's injured elbow prevented him from repeatedly firing his weapon and, that at the time, he was serving as the company's training room NCO handling day-to-day administrative tasks.  

5.  The fact that the applicant provided the first page of his DA Form 2-1 which contains entries showing that he deployed to Bosnia-Herzegovina and Baghdad, Iraq, as well as that he was awarded the Meritorious Service Medal and the Ranger Tab, was noted.  However, this document was inappropriately annotated, and the copy of his DA Form 2-1 in his official military personnel file does not contain these entries. 



6.  The applicant's contention that the first page of the 8 September 2008 DVA Rating Decision proves that he is a Gulf War veteran was also considered, but found to lack merit.  The fact that the applicant is a veteran of the Gulf War era is not questioned; however, this fact does not automatically imply or establish that he served in the Gulf War.  Rather, it simply means that he served on active duty during the Gulf War era, and a DVA Rating Decision for anyone who served on active duty for the same period of time as the applicant whose service was performed entirely within the continental United States would also be designated as a veteran of the Gulf War era.  

7.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.  In view of the foregoing, there is no basis for granting relief to the applicant in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ___X_____  ___X_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      _______ _ XXX  _______   ___
               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)                                         AR20080016188



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ABCMR Record of Proceedings (cont)                                         AR20080016188



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