IN THE CASE OF:
BOARD DATE: 5 March 2009
DOCKET NUMBER: AR20090000401
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 that his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to add his foreign service to Item 12f (Foreign Service). He also requests that Item 18 (Remarks) be corrected to show the dates of his tours in support of Operation Iraqi Freedom were
22 January to 15 June 2003 and 5 March 2004 to 15 March 2005.
2. The applicant states that he served in Kuwait and Iraq during the periods cited.
3. The applicant provides his DD Form 214 and two DA Forms 638 (Recommendations for Award) along with award certificates.
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 applicants 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 applicants 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 4 May 2000. He was awarded the military occupational specialty of light wheeled vehicle mechanic, and was promoted to pay grade E-4.
3. The first DA Form 638 submitted by the applicant shows he was awarded the Army Commendation Medal (ARCOM) for meritorious service while assigned to the 498th Medical Company in Kuwait during the period 22 January to 15 June 2003.
4. The second DA Form 638 submitted by the applicant shows he was awarded the Army Achievement Medal (AAM) for meritorious service while assigned to the 498th Medical Company (location not specified) during Operation Iraqi Freedom II during the period 5 March to 1 December 2004.
5. The applicant was honorably released from active duty on 3 July 2005. The DD Form 214 he was issued does not show his deployments or foreign service.
6. The purpose of the DD Form 214 is to record active military service and other pertinent data regarding that service normally needed to verify military service for benefits, retirement, employment, and membership in veterans' organizations.
7. 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)."
8. In the processing of this case, the Board's staff contacted the Defense Finance and Accounting Service (DFAS) who stated that their records show that the applicant received Imminent Danger Pay (IDP) for the periods 1 January 2003 to 30 June 2003, and again from 1 March 2004 to 31 March 2005. Both periods are recorded to have been served in Kuwait.
DISCUSSION AND CONCLUSIONS:
1. Since IDP is awarded in full months, it cannot be used in and of itself to establish foreign service.
2. The dates given by the applicant fall within the dates he received IDP; therefore, there is no reason to doubt the dates the applicant provided. The applicant also states that he served in both Kuwait and Iraq, however, the evidence provided by the applicant only shows he served in Kuwait during his first deployment. For his second deployment, while it would appear that the applicant served in both Iraq and Kuwait, there is no evidence to verify his service in Iraq. However, his AAM shows that he served in Operation Iraqi Freedom II. Since the actual country the applicant served in cannot be determined, it would be appropriate to enter the operation he served in instead of the country for that deployment.
3. As such, it would be appropriate to correct the applicant's DD Form 214, Item 12f, to show 1 year, 5 months and 4 days of foreign service, and to correct Item 18 by adding "SERVICE IN KUWAIT FROM 20030122 20030615 AND SERVICE IN OPERATION IRAQI FREEDOM II FROM 20040305 20050315."
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 the DD Form 214 of the individual concerned be corrected by:
a. deleting the entries that are currently shown in Item 12f;
b. adding 1 year, 5 months and 4 days to Item 12f; and
c. adding to Item 18 "SERVICE IN KUWAIT FROM 20030122 20030615 AND SERVICE IN OPERATION IRAQI FREEDOM II FROM 20040305 20050315."
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 showing that the individual concerned served in Iraq.
_______ _ 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) AR20080018135
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20090000401
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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