IN THE CASE OF:	  

		BOARD DATE:	        27 MAY 2009

		DOCKET NUMBER:  AR20090001036 


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 Separation From Active Duty) to show award of the Combat Action Badge, the Korea Defense Service Medal, and the Expert Marksmanship Qualification Badge with Rifle Bar.  

2.  The applicant states that the Combat Action Badge and the Korea Defense Service Medal were authorized after his separation and that the Expert Marksmanship Qualification Badge with Rifle Bar was previously awarded during his service in the New York Army National Guard (NYARNG). 

3.  The applicant provides copies of his DD Forms 214, dated 11 May 2002 and 15 April 2005; a copy of Orders 204-155, issued by A Detachment, 509th Personnel Service Battalion, on 23 July 2001; a copy of Orders 262-034, issued by Headquarters, U.S. Army Signal Center and Fort Gordon, Fort Gordon, GA, on 18 September 2000; and a copy of Permanent Orders 154-069, issued by Office of the Adjutant General, NYARNG, Latham, NY, on 3 June 2006, in support of his request.

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 records show he enlisted in the Regular Army for a period of 2 years on 12 May 2000.  He completed basic combat and advanced individual training, and was awarded military occupational specialty (MOS) 31L (Wire System Installer).  He subsequently served in Korea from on or about 30 October 2000 to on or about 29 October 2001.  He was assigned to the 1st Battalion, 17th Field Artillery.

3.  The applicant records further show he was honorably released from active duty in the rank/grade of specialist (SPC)/E4 for the purpose of enlistment in the NYARNG on 11 May 2002.  The DD Form 214 he was issued shows he completed 2 years of creditable active military service.

4.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows he was awarded the Army Lapel Button, the Army Achievement Medal (3rd Award), the Army Service Ribbon, the Overseas Service Ribbon, and the Expert Marksmanship Qualification Badge with Rifle Bar.  

5.  The applicant’s records further show he enlisted in the NYARNG in the rank/grade of SPC/E-4 for a period of 5 years, 11 months, and 8 days on 7 March 2002.  He also executed a 3 year reenlistment on 27 March 2003. 

6.  On 20 January 2004, the applicant was ordered to active duty in support of Operation Iraqi Freedom and subsequently served in Iraq from 10 April 2004 to 15 March 2005.  He was honorably released from active duty to the control of his ARNG unit on 15 April 2005.  The DD Form 214 he was issued shows he completed 1 year, 2 months, and 26 days of creditable active military service.

7.  Item 13 of his DD Form 214 shows he was awarded the Army Commendation Medal, the Army Achievement Medal (4th Award), the Army Good Conduct Medal, the National Defense Service Medal, the Global War on Terrorism Service and Expeditionary Medals, the Armed Reserve Medal with “M” Device, the Army Service Ribbon, and the Overseas Service Ribbon.  Item 13 does not show award of the Combat Action Badge, the Korea Defense Service Medal, and/or the Expert Marksmanship Qualification Badge with Rifle Bar.

8.  On 3 June 2006, the Office of the Adjutant General, NYARNG, published Permanent Orders 154-069 awarding the applicant the Combat Action Badge for actively engaging or being engaged by the enemy during the period 9 April 2004 to 16 March 2005.

9.  Army Regulation 600-8-22 (Military Awards) states that the Korea Defense Service Medal is authorized for award to members of the Armed Forces of the United States who have served on active duty in support of the defense of the Republic of Korea. The area of eligibility encompasses all land area of the Republic of Korea, and the contiguous water out to 12 nautical miles and all air spaces above the land and water area.  The period of eligibility is 28 July 1954 to a date to be determined by the Secretary of Defense.  Service members must have been assigned, attached, or mobilized to units operating in the area of eligibility for 30 consecutive or for 60 nonconsecutive days, or be engaged in combat during an armed engagement, regardless of the time in the area of eligibility, is wounded or injured in the line of duty and required medical evacuation from the area of eligibility, or participating as a regularly assigned air crewmember flying sorties into, out of, or within the area of eligibility in direct support of military operations.  Each day that one or more sorties are flown in accordance with these criteria will count as one day toward the 30 or 60-day requirement, and personnel who serve in operations and exercises conducted in the area of eligibility are considered eligible for the award as long as the basic time criteria is met.  Due to the extensive time period for KDSM eligibility, the nonconsecutive service period for eligibility remains cumulative throughout the entire period. Only one award of the KDSM is authorized for any individual. 

10.  Review of the applicant's records indicates his entitlement to an additional award that is not shown on his DD Form 214.

11.  Army Regulation 600-8-22 states the Overseas Service Ribbon was established by the Secretary of the Army on 10 April 1981.  Effective 1 August 1981, all members of the Active Army, Army National Guard, and Army Reserve in an active Reserve status are eligible for the award for successful completion of overseas tours.  Numerals will be used to denote second and subsequent awards of the Overseas Service Ribbon.

12.  A Frequently Asked Questions document from the U. S. Army Human Resources Command, Military Awards Branch, dated 22 January 2006, contains examples to show Soldiers' eligibility for awards while deployed to Iraq or Afghanistan.  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 complete 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."

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DD Form 214 should be corrected to show award of the Combat Action Badge, the Korea Defense Service Medal, and the Expert Marksmanship Qualification Badge with Rifle Bar.

2.  Permanent orders awarded the applicant the Combat Action Badge for actively engaging or being engaged by the enemy during the period 9 April 2004 to 16 March 2005 which is not shown on his DD Form 214; therefore, he is entitled to correction of his DD Form 214 to show this badge.

3.  The evidence of record shows that the applicant served in Korea from on or about 30 October 2000 to on or about 29 October 2001.  Therefore, he served a qualifying period for award of the Korea Defense Service Medal and is entitled to correction of his DD Form 214 to show this award.

4.  The evidence of record shows the applicant completed 11 months and 6 days of continuous months in a temporary change of station/tour of duty status foreign/overseas service in Iraq.  Therefore, he served a qualifying period for award of the Overseas Service Ribbon and should have his records corrected to show this award.

5.  The evidence of record shows that the applicant was previously awarded the Expert Marksmanship Qualification Badge with Rifle Bar.  There is no indication in his records that this badge was withdrawn or revoked or that he attained a lower qualification with his weapon.  Therefore, he is entitled to correction of his DD Form 214 to show award of the Expert Marksmanship Qualification Badge with Rifle Bar.







BOARD VOTE:

___X_____  __X______  __X______  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  deleting the Overseas Service Ribbon from the applicant’s DD Form 214, dated 15 April 2005;

	b.  awarding the applicant the Korea Defense Service Medal; and 

	c.  adding the Combat Action Badge, the Overseas Service Ribbon (2nd Award); the Korea Defense Service Medal, and the Expert Marksmanship Qualification Badge with Rifle Bar to his DD Form 214, dated 15 April 2005.  




      _______ _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)                                         AR20090001036





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ABCMR Record of Proceedings (cont)                                         AR20090001036



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