IN THE CASE OF:	

		BOARD DATE:	13 August 2009    

		DOCKET NUMBER:  AR20090004325 


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 item 18 (Remarks) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he served in an imminent danger area.

2.  The applicant states he was awarded the Combat Infantryman Badge for convoy security while serving with Company A, 1st Battalion, 162nd Infantry, in Iraq.  He also states that the last entry in item 18 of his DD Form 214 states, "SOLDIER DID NOT SERVE IN AN IMMINENT DANGER AREA."  He adds that he does not know if this statement is some kind of a joke; however, he would like this statement to be taken off of his DD Form 214.

3.  The applicant provides, in support of his application, a copy of his DD Form 214 with an effective date of 20 May 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 enlisted in the Army National Guard (ARNG) for a period of 8 years on 31 August 1987 and was assigned to an ARNG troop program unit.  The applicant was ordered to initial active duty training and upon completion of training he was awarded military occupational specialty 11B (Infantryman).  On 31 August 1990, the applicant transferred to the U.S. Army Reserve Control Group (Reinforcement) to complete his remaining military service obligation.

3.  On 27 February 2001, the applicant enlisted in the Oregon ARNG (ORARNG) for a period of 3 years.  He was ordered to active duty in support of Operations Enduring Freedom/Iraqi Freedom on 10 February 2003.

4.  The applicant’s DD Form 214 shows he entered active duty for this period on 10 February 2003, was honorably released from active duty on 20 May 2004 based on completion of required active service, and transferred to Company A, 1st Battalion, 162nd Infantry, ORARNG, Hillsboro, Oregon.  At the time he had completed 1 year, 3 months, and 11 days of net active service and 11 months and 12 days of foreign service.

   a.  Item 13 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) shows he was awarded the National Defense Service Medal, Global War on Terrorism Expeditionary Medal, Global War on Terrorism Service Medal, Armed Forces Reserve Medal with "M" Device, Army Service Ribbon, Overseas Service Ribbon (2nd Award), and Combat Infantryman Badge.

   b.  Item 18, in pertinent part, contains the entry, "PLACE OF DUTY:  HILLSBORO OR/FORT CARSON CO/FORT LEWIS WA/KUWAIT/IRAQ//
SOLDIER DID NOT SERVE IN AN IMMINENT DANGER AREA//NOTHING FOLLOWS."

5.  In connection with the processing of this case, the Defense Finance and Accounting Service (DFAS), Indianapolis, Indiana, was asked to verify if the applicant was authorized hostile fire pay/imminent danger pay (HFP/IDP).  The DFAS responded that the applicant received HFP for service in a combat zone (i.e., Iraq) from 1 February 2003 to 31 May 2004.

6.  Department of Defense Financial Management Regulation, volume 7A (Military Pay Policy and Procedures - Active Duty and Reserve Pay), chapter 10 (Special Pay - Duty Subject to Hostile Fire or Imminent Danger), paragraph 100102 (Payment), in pertinent part, provides that HFP or IDP is payable at a monthly rate.  It is payable in addition to all other pays or allowances.  Additionally, it is payable in the full amount without being prorated or reduced for each month during any part of which a member qualifies.  Active and Reserve component members who qualify at any time during a month will receive the full amount of HFP/IDP regardless of the actual period of time served on active or inactive duty during that month.

7.  Army Regulation 635-5 (Personnel Separations - Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It also establishes standardized policy for preparing and distributing the DD Form 214.  Chapter 2 contains guidance on the preparation of the DD Form 214.  It states, in pertinent part, the source documents for entering information on the DD Form 214 will be the Enlisted Record Brief/Officer Record Brief, separation approval authority documentation, separation orders, or any other document authorized for filing in the official military personnel file.

8.  Paragraph 2-4 (Completing the DD Form 214) of Army Regulation 635-5 contains item-by-item instructions for completing the DD Form 214.  The instructions for item 18 state to use this block for entries required by Headquarters, Department of the Army, for which a separate block is not available and for completing entries that are too long for their blocks.

9.  Headquarters, U.S. Army Human Resources Command, Retirements and Separations Branch, Alexandria, Virginia, Transition Center Newsletter 04-01 (2004), provided guidance for entries on the DD Form 214 and, in particular, additional required entries for item 18.  For Reserve Soldiers ordered to active duty to support a contingency operation, this document added the requirement to enter an appropriate statement (e. g., "SOLDIER SERVED IN AN IMMINENT DANGER AREA").

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his DD Form 214 should be corrected to delete the statement "SOLDIER DID NOT SERVE IN AN IMMINENT DANGER AREA" because he served in Iraq and the statement is inappropriate.

2.  Records show the applicant served in support of Operations Enduring Freedom/Iraqi Freedom in Kuwait and Iraq and he was authorized HFP during the period from 1 February 2003 through 31 May 2004.  Thus, the evidence of record supports the applicant’s claim that he served in a combat zone (i.e., an imminent danger area).  Therefore, it would be appropriate to correct his DD Form 214 to show he served in an imminent danger area.
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 from item 18 of his DD Form 214 the entry, "SOLDIER DID NOT SERVE IN AN IMMINENT DANGER AREA//NOTHING FOLLOWS" and

	b.  adding to item 18 of his DD Form 214 the entry, "SOLDIER SERVED IN AN IMMINENT DANGER AREA//NOTHING FOLLOWS."



      ____________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)                                         AR20090004325



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ABCMR Record of Proceedings (cont)                                         AR20090004325



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