IN THE CASE OF:	  

		BOARD DATE:	  01 July 2009

		DOCKET NUMBER:  AR20090003634 


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 effect, that his service in Iraq be documented on his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 3 August 2004.

2.  The applicant states he deployed to Iraq in April 2003 and returned in December 2003.

3.  The applicant provides, in support of his application, copies of his reenlistment contract, his Physical Evaluation Board (PEB) Proceedings, statements from three former Soldiers, and his DD Form 214 with a separation date of 3 August 2004.

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 personnel records show he enlisted in the Regular Army (RA) on 1 February 2001 for a period of 3 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 13B (Cannon Crewmember).  

3.  On 8 September 2003, the applicant reenlisted in Mosul, Iraq for a period 
of 2 years.

4.  On 5 April 2004, a PEB found the applicant physically unfit for duty due to asthma.  The PEB recommended a combined disability rating of 30 percent and that the applicant be placed on the temporary disability retired list (TDRL) with a reexamination during November 2005.  According to the PEB proceedings, the applicant had deployed to Iraq in April and returned to Fort Bragg, NC in December 2003 because of the asthma.

5.  On 3 August 2004, the applicant was released from active duty and placed on the TDRL.  He had completed 3 years, 6 months, and 3 days of active service that was characterized as honorable.  The applicant's service in Iraq is not shown on his DD Form 214.  Item 12f (Foreign Service) does not show any foreign service and dates of deployment are not shown in item 18 (Remarks).  Item 13 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant’s DD Form 214 does not show any authorized awards relating to the applicant's tour of duty in Iraq.

6.  An electronic mail (email) from the Defense Finance and Accounting Service (DFAS), dated 14 April 2009, states the applicant served in a combat zone receiving hostile fire pay for the period from 1 April 2003 to 30 November 2003 in Kuwait.

7.  In an undated statement, a fellow Soldier states he and the applicant were deployed to Mosul, Iraq in 2003 in support of Operation Iraqi Freedom (OIF).  However, he did not indicate the exact dates of the deployment in Iraq.

8.  In an undated statement, the applicant's platoon sergeant states that during his tour to Mosul, Iraq from March to January 2004 with the 101st Airborne Division, the applicant was one of his Soldiers.  However, he did not indicate the exact dates of deployment to Mosul.

9.  In a statement, dated 1 September 2008, a staff sergeant stated he served in OIF from 3 April 2003 to 14 January 2004.  He also provides information on some of the unclassified missions he participated in.  However, he does not 
mention the applicant anywhere in his statement.
10.  Army Regulation 600-8-22 (Military Awards) states that individuals authorized the Iraq Campaign Medal must have served in direct support of Operation IRAQI FREEDOM (OIF).  The area of eligibility encompasses all land area of the country of Iraq, and the contiguous water area out to 12 nautical miles, and all air spaces above the land area of Iraq and above the contiguous water area out to 12 nautical miles.  The Iraq Campaign Medal period of eligibility is on or after 19 March 2003 to a future date to be determined by the Secretary of Defense or the cessation of OIF. To qualify for award of this campaign medal, service members must have been assigned or attached to or mobilized with units operating in these areas of eligibility for 30 consecutive days or for 60 non-consecutive days or meet one of the following criteria:  a) be engaged in combat during an armed engagement, regardless of the time in the area of eligibility; b) be medically evacuated from the area of eligibility for wounds or injuries resulting from participation in an operation or official duties; or c)  participates as a regularly assigned air crewmember flying sorties into, out of, within or over the area of eligibility in direct support of the military operations (each day of operations counts as one day of eligibility).  This campaign medal may be awarded posthumously.

11.  MILPER (military personnel) Message Number 08-123, issued 30 April 2008, provided Iraq campaign phases and the inclusive dates.  Based on the applicant's period of service in Iraq he served in the Transition of Iraq (2 May 2003 - 28 June 2004).

12.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  In pertinent part, it directs that foreign service, taken from the ERB/ORB (Enlisted Record Brief/Officer Record Brief) performed during the period covered in Item 12c (Net Active Service This Period) of the DD Form 214 will be entered in item 12f.  

13.   Army Regulation 635-5, in pertinent part, also directs that when an active duty Soldier is deployed with his unit during the period covered by the 
DD Form 214, an entry will be made in Item 18 to show the name of the country deployed to and the inclusive dates in YYYY/MM/DD format.

DISCUSSION AND CONCLUSIONS:

1.  	The applicant's statement and two of the statements submitted by the applicant all agree the applicant served in Iraq.  He had reenlisted on 
8 September 2003 in Mosul, Iraq.  Comments made in the applicant's PEB proceedings indicated he was deployed to Iraq in April and returned to 
Fort Bragg in December 2003 because of his asthma.  The email from DFAS 
indicates that the applicant received hostile fire pay for the period from 
1 April 2003 to 30 November 2003.  However, the exact dates of the applicant's deployment are not indicated in any of these documents.  Therefore, there is insufficient information available to provide the months and days for an accurate entry in item 12f of his DD Form 214.

2.  In addition, there is insufficient information to include an entry showing the country and inclusive dates of deployment in Item 18 of the applicant's 
DD Form 214.

3.  Two of the statements submitted by the applicant corroborate his statement that he was in Iraq, he reenlisted in Iraq, and the PEB indicates he was in Iraq from April 2003 to December 2003.  DFAS states he received hostile fire pay from 1 April 2003 to 30 November 2003.  While the exact dates of deployment in Iraq are unknown, it is reasonable to conclude he served at least 30 consecutive days in Iraq.  His service in Iraq would have been during the Transition of Iraq Campaign from 2 May 2003 - 28 June 2004.  Therefore, the applicant is authorized the Iraq Campaign Medal with one bronze service star.

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 all Department of the Army records of the individual concerned be corrected by adding to item 13 of the applicant's DD Form 214 the Iraq Campaign Medal with one bronze service star.







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 entries in items 12f and 18 of the applicant's DD Form 214 relating to his service 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)                                         AR20090003634



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090003634



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1