IN THE CASE OF:	  

		BOARD DATE:	  6 August 2009

		DOCKET NUMBER:  AR20090005424 


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 his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to add the Iraq Service Medal (assumed to be the Iraq Campaign Medal, or ICM), Global War on Terrorism Service Medal (GWOTSM), Global War on Terrorism Expeditionary Medal (GWOTEM), Combat Action Badge (CAB), Combat Medical Badge (CMB).  He also requests, in effect, award of the Army Commendation Medal (ARCOM).

2.  The applicant states he was stationed in Kuwait from November 2002 to March 2003 and in Iraq from March 2003 to May 2003.

3.  The applicant provides a certificate of achievement, which was for combat operations in support of Operation Iraqi Freedom, and his DD Form 214.

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 that he enlisted in the Regular Army on 26 January 2000, was awarded the military occupational specialty of practical nurse, and was promoted to pay grade E-4.  The applicant was honorably released from active duty at the expiration of his term of service on 25 January 2004.  The DD Form 214 he was issued shows he was awarded the Army Achievement Medal (3rd Award), the Good Conduct Medal, the National Defense Service Medal, the Army Service Ribbon, the Overseas Service Ribbon, and the NATO Medal.  In Item 18 (Remarks) it shows that the applicant served in Southwest Asia from 27 November 2002 to 18 March 2003.

3.  The applicant's DA Form 2-1 (Personnel Qualification Record), Item 9 (Awards, Decorations and Campaigns) has the Army Achievement Medal, the Good Conduct Medal, the National Defense Service Medal, the Army Service Ribbon, the Overseas Service Ribbon, and the NATO Medal entered.  Item 5 (Overseas Service), is blank.  Item 35 (Record of Assignments), only shows the applicant's Army National Guard (ARNG) assignments after his release from active duty.

4.  Headquarters, U.S. Army Human Resources Command message, dated 17 March 2004, announced implementing instructions for the Global War on Terrorism Expeditionary Medal (GWOTEM) and the Global War on Terrorism Service Medal (GWOTSM).  In pertinent part, the message states that these medals will be awarded to recognize all members of the armed forces of the United States serving in or in support of the Global War on Terrorism operations, on or after 11 September 2001 to date to be determined. 

5.  Initial award of the GWOTEM is limited to Soldiers deployed abroad in operations Enduring Freedom and Iraqi Freedom in the following Department of Defense designated specific geographic areas of eligibility: Afghanistan, Bahrain, Bulgaria (Bourgas), Crete, Cyprus, Diego Garcia, Djibouti, Egypt, Eritrea, Ethiopia, Iran, Iraq, Israel, Jordan, Kazakhstan, Kenya, Kuwait, Kyrgyzstan, Lebanon, Pakistan, Philippines, Qatar, Romania (Constantan), Saudi Arabia, Somalia, Syria, Tajikistan, Turkey (east of 35 degrees east latitude) Turkmenistan, United Arab Emirates, Uzbekistan, Yemen, that portion of the Arabian Sea north of 10 degrees north latitude and west of 68 degrees longitude, Bab El Mandeb, Gulf of Aden, Gulf of Aqaba, Gulf of Oman, Gulf of Suez, that portion of the Mediterranean Sea east of 28 degrees east longitude, Persian Gulf, Red Sea, Strait of Hormuz, and Suez Canal.  To be eligible, for the GWOTEM a Soldier must be assigned, attached or mobilized to a unit participating in designated operations for 30 consecutive days or 60 nonconsecutive days.

6.  Award of the GWOTSM is authorized to Soldiers who have participated in or served in support of Global War on Terrorism operations outside of the designated area of operations as outlined in paragraph five above.  Initial award of the GWOTSM will be limited to airport security operations (from 27 September 2001 through 31 May 2002) and Soldiers who supported Operations Noble Eagle, Enduring Freedom, and Iraqi Freedom.  As with the GWOTEM, a Soldier must have served 30 consecutive, or 60 nonconsecutive days.  HRC Awards Branch personnel have advised that the GWOTSM has been awarded, and will continue to be awarded, to all Army personnel who serve on active duty for 30 consecutive days, or more, regardless of where they serve (the same criteria as the National Defense Service Medal).

7.  Soldiers may receive both the GWOTEM and the GWOTSM if they meet the requirements of both awards.  However, the same period of service establishing eligibility for one cannot be used to justify service eligibility for the other.

8.  Army Regulation 600-8-22 (Military Awards) states the requirements for award of the CAB are branch and MOS immaterial.  Assignment to a combat arms unit or a unit organized to conduct close or offensive combat operations, or performing offensive combat operations is not required to qualify for the CAB.  However, it is not intended to award the CAB to all Soldiers who serve in a combat zone or imminent danger area.  The Soldier must be performing assigned duties in an area where hostile fire pay or imminent danger pay is authorized.  The Soldier must be personally present and actively engaging or being engaged by the enemy, and performing satisfactorily in accordance with the prescribed rules of engagement.  The Soldier must [not] be assigned or attached to a unit that would qualify the Soldier for the Combat Infantryman Badge or the Combat Medical Badge.

9.  Army Regulation 600-8-22 also states that award of the CAB is authorized from 18 September 2001 to a date to be determined.   Award for qualifying service in any previous conflict is not authorized.  Retroactive awards of the CAB are not authorized prior to 18 September 2001.  

10.  Military Awards Branch Message, dated 8 April 2005, provided the following implementing instructions for award of the ICM.  Award of the ICM is authorized for service in direct support of Operation Iraqi Freedom on or after 19 March 2003 to a future date to be determined by the Secretary of Defense or the cessation of the operation.  The area of eligibility encompasses all land area of the country of Iraq and the contiguous sea area out to 12 nautical miles and the air space above these areas.  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.  Soldiers are authorized a bronze service star to be affixed on the ICM for the following campaigns:

LIBERATION OF IRAQ			19 MAR 2003 – 1 MAY 2003 
TRANSITION OF IRAQ		  	  2 MAY 2003 – 28 JUN 2004 
IRAQI GOVERNANCE		 	 29 JUN 2004 – 15 DEC 2005 
NATIONAL RESOLUTION		 16 DEC 2005 – DATE TO BE 
    DETERMINED 

11.  Only one award of the ICM may be authorized for any individual.  Effective 30 April 2005, the GWOTEM is no longer authorized to be awarded for service in Iraq; however, service members who qualified for the GWOTEM by reason of service between 19 March 2003 and 30 April  2005 in an area for which the ICM was subsequently authorized shall remain qualified for the GWOTEM.  Upon application, any such service member may be awarded the ICM in lieu of the 
GWOTEM for such service; however, no service member shall be entitled to award of the ICM and the GWOTEM for the same act, achievement or period of service.  

12.  Paragraph 8-7b(4)1 of Army Regulation 600-8-22 (Military Awards) provides that on or after 18 September 2001, medical personnel assigned or attached to or under operational control of any ground Combat Arms unit (not to include members assigned or attached to Aviation units) of brigade or smaller size, who satisfactorily performed medical duties while the unit is engaged in active ground combat, provided they are personally present and under fire, are eligible for award of the CMB.  However, retroactive awards under these criteria are not authorized for service prior to 18 September 2001.

13.  Title 10 of the U. S. Code, section 1130 (10 USC 1130) provides the legal authority for consideration of proposals for decorations not previously submitted in timely fashion.  It allows, in effect, that upon the request of a Member of Congress, the Secretary concerned shall review a proposal for the award or presentation of a decoration (or the upgrading of a decoration), either for an individual or a unit, that is not otherwise authorized to be presented or awarded due to limitations established by law or policy for timely submission of a recommendation for such award or presentation.  Based upon such review, the Secretary shall make a determination as to the merits of approving the award or presentation of the decoration.

14.  In the processing of this case, the Defense Finance and Accounting Service (DFAS) was contacted by the Board's staff.  The DFAS stated that the applicant served in Kuwait with entitlement to hostile fire and combat zone tax exempt status from 27 November 2002 through 24 May 2003.

DISCUSSION AND CONCLUSIONS:

1.  The applicant served on active duty during a time which entitled him to the GWOTSM.  As such, it would be appropriate to now add this award to his DD Form 214.

2.  The applicant's DD Form 214 verifies that the applicant served in Southwest Asia from 27 November 2002 to 18 March 2003.  The applicant states that he served in Kuwait from November 2002 to March 2003.  As such, he is entitled to the GWOTEM for his service in Kuwait and it would be appropriate to now add this award to his DD Form 214.

3.  While the applicant states he served in Iraq, there is no evidence to corroborate that contention.  However, the DFAS has verified that the applicant had entitlement to hostile fire pay and combat zone tax exempt status from 27 November 2002 through 24 May 2003.  This coincides with the applicant's statement that he served in Iraq from March 2003 to May 2003.  Since this is over 30 continuous days, he is entitled to ICM with 2 bronze service stars.

4.  While the applicant was a member of the Army Medical Department (practical nurse), he was not assigned or attached to a ground Combat Arms unit of brigade or smaller size, and there is no evidence that he satisfactorily performed medical duties while his unit was engaged in active ground combat, or that he was personally present and under fire.  As such, he is not entitled to the CMB.

5.  Since there is no evidence that he was personally present and under fire, there is insufficient evidence in which to award the applicant the CAB.

6.  There is no evidence that the applicant was recommended for, or awarded, the ARCOM.  As such, there is an insufficient basis in which to award the applicant the ARCOM or to add it to his DD Form 214.

7.  While the available evidence is insufficient for awarding the applicant an ARCOM, this in no way affects the applicant’s right to pursue his/her claim for the ARCOM by submitting a request through his/her Member of Congress under the provisions of 10 USC 1130.

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 the DD Form 214 of the individual concerned be corrected by adding the ICM with 2 bronze service stars, the GWOTSM and the GWOTEM.

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 the CAB, the CMB, and the ARCOM.  




      _______ _   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)                                         AR20090005424





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ABCMR Record of Proceedings (cont)                                         AR20090005424



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