BOARD DATE: 10 September 2009
DOCKET NUMBER: AR20090003459
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 the issuance of a new DD Form 214 (Certificate of Release or Discharge from Active Duty) showing his combat service.
2. The applicant states that he is a combat veteran and that he would like to have the dates of his combat service included on his DD Form 214.
3. The applicant provides a letter from the National Personnel Records Center dated 9 February 2009; a Request Pertaining to Military Records; a copy of his DD Form 214; and a copy of an Eligibility Report.
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. On 4 January 2001, the applicant enlisted in the Regular Army in Brooklyn, New York, for 3 years, in the pay grade of E-1. He successfully completed his training as a cannon crewmember.
3. The applicant was discharged under honorable conditions (general) on
19 July 2003, under the provisions of Army Regulation 635-200, chapter 14-12c(2), due to misconduct. He had completed 2 years, 6 months, and 16 days of net active service.
4. Item number 12f (Foreign Service) on the applicants DD Form 214 shows that he had 0000 Year(s), 00 Month(s) and 00 Day(s) of foreign service and item number 18 (Remarks) does not show that he had foreign service.
5. Information obtained from the Defense Finance and Accounting Service shows that the applicant was receiving hostile fire pay from 1 November 2001 through 31 May 2002, while he was serving in Macedonia.
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 item 12f, from the Soldiers official record, enter the total amount of foreign service completed during the period covered by the DD Form 214.
7. The separation documents regulation 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.
8. Army Regulation 635-5 further states that once a DD Form 214 has been issued, do not reissue except when it is determined that the original DD Form 214 cannot be properly corrected by issuance of a DD Form 215 (Correction to DD Form 214) or if the correction would require issuance of more than two DD Forms 215.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that he should be furnished a new DD Form 214 showing his combat service.
2. His contentions have been noted. However, in accordance with the applicable regulation, a DD Form 214 will not be reissued except when it is determined that the original DD Form 214 cannot be properly corrected by the issuance of a DD Form 215, or if the correction would require issuance of more than two DD Forms 215.
3. The available information shows that the applicant was serving in a combat zone and that he was receiving imminent danger pay from 1 November 2001 through 31 May 2002. However, his exact dates of foreign service are not in the available record and the applicant has failed to submit this information. Therefore, without access to the actual dates his DD Form 214 cannot be amended to reflect his foreign service at this time. He may reapply if he can provide the exact dates of deployment.
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.
_______ _ ___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) AR20090003459
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ABCMR Record of Proceedings (cont) AR20090003459
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