IN THE CASE OF:	  

		BOARD DATE:	       1 JULY 2009

		DOCKET NUMBER:  AR20090003855 


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, correction to this DD Form 214 (Certificate of Release or Discharge from Active Duty) to reflect awards, campaigns ribbons, and expeditionary medals for participation in Northern Iraq Operations Poised Hammer and Provide Comfort.  He also requests, in effect, his DD Form 214 be corrected to show he served in Iraq.  

2.  The applicant states, in effect, that his DD Form 214 does not reflect any awards for his participation in Northern Iraq Operations Poised Hammer and Provide Comfort and the time he spent in Iraq.  He also states that he served with Company B, 3rd Battalion, 325th Infantry Regiment (Airborne Battalion Combat Team (ABCT)) (82nd Airborne) from on or about 26 April 1991 to August 1991.  He was out processing from the Army at the time his company was returning from Iraq and he never received the documentation for the time he spent in Iraq.  He noticed on his Standard Form (SF) 50-B (Notification of Personnel Action) that he was not given his 5-point veterans preference he desperately needs for reduction in force, competitive promotions, and employment preferences.  He further states that several months in a combat theater in Iraq qualifies.

3.  In support of his application, the applicant provides copies of Orders 36-16, his DD Form 214, and his SF 50-B.

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 records show he enlisted in the Army Delayed Entry Program (DEP) on 2 September 1988.  He enlisted in the Regular Army, in pay grade E-1, on 15 November 1988, for 3 years.  He completed basic training and advanced individual training and was awarded military occupational specialty 11B, Infantryman.  

3.  The applicant's records contain Orders 074-120, dated 15 March 1989, reassigning him from the 507th Infantry, The School Brigade, Fort Benning, Georgia, to the 3rd Battalion, 325th Infantry, APO NY (Italy), with a will proceed date of 24 March 1989.  

4.  The applicant's DA Form 2-1 (Personnel Qualification Record – Part II), Section VII (Current and Previous Assignments), shows he was enroute to Italy on 28 March 1989 and was assigned to the 3rd Battalion, 325th Infantry Regiment, Italy, on 16 April 1989.  There is no evidence he served in Iraq.

5.  On 17 April 1989, the applicant was assigned to hazardous duty as a parachutist.  On 19 April 1989, the applicant, after being advised of his permanent change of station assignment to Company B, 3rd Battalion, 325th Infantry Regiment (ABCT), Vicenza, Italy, accepted the airborne assignment. 

6.  The applicant submits a copy of Orders 36-16, dated 25 April 1991, that shows that the Combat Support Company, 3rd Battalion, 325th Infantry (ABCT), United States Army Southern European Task Force, and 5th Theater Army Area Command, APO New York, Vicenza, Italy, was assigned to Joint Task Force Provide Comfort, USAF Air Base, Incirlik, Turkey, on or about 26 April 1991.  The applicant's name is hand-written at the bottom of the orders.

7.  The Gulf War List shows the applicant was deployed in support of the Gulf War for the period from 26 April 1991 to 31 July 1991.  The specific geographical location of his service is not shown.

8.  The applicant's records also contain Orders 127-15, dated 23 July 1991, reassigning him from Company B, 3rd Battalion, 325th Infantry (ABCT), APO NY, to the US Army Transition Point, Fort Dix, New Jersey, for his release from active duty on 24 August 1991.  

9.  The applicant's DA Form 2-1 (Personnel Qualification Record – Part II), Item 5 (Oversea Service), shows he served in Italy from 16 April 1989 to 15 April 1991.  Section VII, of his DA Form 2-1, shows he was enroute to CONUS (Continental United States) on 26 July 1991.  

10.  The applicant was honorably released from active duty, in pay grade E-4, on 24 August 1991, for an early separation for further education.  He was transferred to the United States Army Reserve Control Group (Reinforcement).

11.  Item 12.f. (Foreign Service) of the applicant's DD Form 214, show he was credited with 2 years, 3 months, and 15 days of foreign service.  Item 18 of his DD Form 214 shows his DEP from 2 September 1988 to 14 November 1988.

12.  The applicant also submits a copy of his SF 50-B, 4 January 2009, that does show he did not receive the 5-point veterans preference.

13.  On 18 June 2009, a staff member of the Defense Finance and Accounting Services, verified that their archives pay histories for the applicant's timeframe and pay account were no longer available for verification of the applicant's service in Iraq.

14.  Army Regulation 600-8-22 (Military Awards), in pertinent part, provides that the Humanitarian Service Medal is awarded to members who distinguished themselves by meritorious direct participation in a Department of Defense approved significant military act or operation of a humanitarian nature.  A service member must be on active duty at the time of direct participation, must have directly participated in the humanitarian act or operation within the designated geographical area of operation and within specified time limits, and must provide evidence that substantiates direct participation.

15.  Table C-1 of Army Regulation 600-8-22 also shows the Operation Provide Comfort (first increment) inclusive dates were 5 April to 14 June 1991, with geographical areas of Northern Iraq and Turkey.  Operation Provide Comfort (second increment) inclusive dates were 14 June to 15 April 1992, with geographical areas of Northern Iraq and Kuwait.  Operation Provide Comfort (third increment) inclusive dates were 16 April 1992 to 31 July 1993, with geographical areas of Northern Iraq, Kuwait, and Turkey.  All periods were approved by the Department of Defense as qualifying for award of the Humanitarian Service Medal.  There was no listing for Northern Iraq Operation Poised Hammer.

16.  Army Regulation 600-8-22 further provides, in pertinent part, for award of the Armed Forces Expeditionary Medal for qualifying service after 1 July 1958 in U.S. military operations, U.S. operations in direct support of the United Nations, and U.S. operations of assistance to friendly foreign nations.  Qualifications for this award includes the requirements to be a bona fide member in a unit engaged in the operation or to serve in the area of operations for 30 days, or to be engaged in direct support of the operation for 30 consecutive or 60 nonconsecutive days provided this support involves entering the area of operations.  There are no designated military operations and dates for Italy and Turkey for this award.

17.  Army Regulation 635-5 (Personnel Separation – Separation Documents), in effect at the time, governed the preparation of the DD Form 214.  It stated, in pertinent part, that foreign service performed during the period covered by the DD Form 214 would be entered in Item 12.f.  The regulation also stated that the period of DEP would be entered in Item 18.  There were no provisions for listing the foreign country of any overseas service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DD Form 214 does not reflect any awards, campaign ribbons, expeditionary medals for participation in Northern Iraq Operations Poised Hammer and Provide Comfort.

2.  The evidence of record shows the applicant was assigned to the Joint Task Force Provide Comfort, Turkey, on 26 April 1991.  Based on his participation during Operation Provide Comfort and service in Turkey he is entitled to award of the Humanitarian Service Medal.  Therefore, the applicant is entitled to a correction of his DD Form 214 to reflect this award.

3.  There is also no evidence of the applicant's entitlement to any other awards, campaign ribbons, or expeditionary medals during his service in Italy or other awards for his service in Turkey.  Based on the foregoing there is no basis for correction of his DD Form 214 to show any additional awards.

4.  The applicant also contended that his DD Form 214 should be corrected to reflect he served in Iraq from 26 April 1991 to August 1991.  However, there is no evidence in his active duty records and he has failed to provide compelling evidence to show he actually served in Iraq from April to August 1991.  The evidence of record shows the applicant served in Italy, and in Turkey from 16 April 1989 to 26 July 1991 with Company B, 3rd Battalion, 325th Infantry Regiment (ABCT), Vicenza, Italy, and Joint Task Force Provide Comfort, USAF Air Base, Incirlik, Turkey.  Therefore, no basis has been established to show he served in Iraq on his DD Form 214.

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  

6.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

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 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214 the Humanitarian Service Medal and by providing the applicant a separation document that includes this award.

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 correction to his DD Form 214 to show any additional awards or that he served in Iraq from 26 April to August 1991.




      _______ _   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)                                         AR20090003855



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