IN THE CASE OF:	  

		BOARD DATE:	      5 MARCH 2009

		DOCKET NUMBER:  AR20090001798 


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 an entry in item 18 (Remarks) on his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 
16 December 2005 be corrected.  He also requests award of the Purple Heart.

2.  The applicant states that item 18 on his DD Form 214 incorrectly states “SOLDIER DID NOT SERVE IN AN IMMINENT DANGER PAY AREA.”  He contends that he served in Falujah, Iraq during Operation Iraqi Freedom which was declared an imminent danger pay area.  In addition, he was injured while on a combat mission in the line of duty.  He claims that he needs his DD Form 214 to indicate that he served in a combat zone and that he was injured in the line of duty during a combat mission.  He also states that he underwent a full right hip replacement after being evacuated to Balad and ultimately back to Womack Army Medical Center, Fort Bragg, North Carolina.  

3.  The applicant provides a copy of his DD Form 214 for the period ending 
16 December 2005; active duty orders, dated 6 August 2004; reassignment orders, dated 2 September 2004, 23 November 2004, 29 November 2004, and 
7 January 2005; a DA Form 2173 (Statement of Medical Examination and Duty Status); active duty orders, dated 7 January 2005; amendment orders, dated 
8 June 2005; a Line of Duty investigation; an Aeromedical Evacuation Patient Record; Medical Evaluation Board Proceedings; and service medical records 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 request for award of the Purple Heart was addressed by separate correspondence (failure to exhaust all administrative remedies).  Therefore, this portion of the applicant’s request will not be discussed further in these Proceedings. 

3.  Having prior inactive and active service, the applicant was ordered to active duty from the U. S. Army Reserve on 11 August 2004 in support of Operation Iraqi Freedom.  On 16 December 2005, he was released from active duty.

4.  Item 18 on the applicant’s DD Form 214 for the period ending 16 December 2005 states, in pertinent part, “ORDERED TO ACTIVE DUTY IN SUPPORT OF OPERATION IRAQI FREEDOM” and “SOLDIER DID NOT SERVE IN AN IMMINENT DANGER PAY AREA.”

5.  The applicant’s inclusive dates of service in Iraq are not available.  However, orders, dated 6 August 2004, show the applicant was ordered to report to Fort Bragg, North Carolina on 14 August 2004 for mobilization for Iraqi Freedom for a period of 365 days.  Orders, dated 2 September 2004, show he was reassigned/deployed in support of Operation Iraqi Freedom (with duty in Iraq) on or about 3 September 2004.  A DA Form 2173, dated 1 December 2004, shows the applicant injured his right knee on 8 November 2004 in Fallujah, Iraq.  Orders, dated 23 November 2004, show the applicant was reassigned to Womack Army Medical Center, Fort Bragg, North Carolina on or about 
23 November 2004.      

6.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  It states 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).  

DISCUSSION AND CONCLUSIONS:

1.  The preponderance of evidence of record does not support the entry in item 18 on the applicant’s DD Form 214 for the period ending 16 December 2005 which states that he did not serve in an imminent danger pay area.  Orders show he was deployed to Iraq in support of Operation Iraqi Freedom and the DA Form 2173 provided by the applicant shows he injured his right knee on 8 November 2004 in Fallujah, Iraq.  Therefore, it would be appropriate to remove the entry, “SOLDIER DID NOT SERVE IN AN IMMINENT DANGER PAY AREA” on his DD Form 214 for the period ending 16 December 2005.     

2.  The applicant’s inclusive dates of service in Iraq are not available.  However, the orders which show he was deployed to Iraq on 3 September 2004 and the orders which show he was reassigned to Womack Army Medical Center, Fort Bragg, North Carolina on 23 November 2004 are accepted as sufficient evidence on which to amend item 18 on his DD Form 214 to show he served in Iraq from 
3 September 2004 to 23 November 2004.

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 entry, “SOLDIER DID NOT SERVE IN AN IMMINENT DANGER PAY AREA” in item 18 on his DD Form 214 for the period ending 
16 December 2005; and 

	b.  adding the entry, “SERVICE IN IRAQ:  20040903-20041123” in item 18 on this DD Form 214. 




      _______ _   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)                                         AR20090001798





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ABCMR Record of Proceedings (cont)                                         AR20090001798



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