IN THE CASE OF:	  

		BOARD DATE:	18 August 2009    

		DOCKET NUMBER:  AR20090005820 


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 his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 14 June 2005 to show his rank and grade as specialist (SPC)/E-4.  He also requests, in effect, that the Iraq Campaign Medal and his service in Iraq be added to his DD Form 214.

2.  The applicant states, in effect, that the rank on his DD Form 214 incorrectly shows his rank and grade as private (PV2)/E-2.  The applicant further states his DD Form 214 should reflect that he served in Iraq.

3.  The applicant provides his DD Form 214; a National Guard Bureau (NGB)  Form 22 (Report of Separation and Record of Service) for the period ending 1 June 2005; a DA Form 31 (Request for Authority for Leave), dated 27 January 2005; and an Army National Guard Honorable Discharge Certificate, dated 1 June 2005.

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 Tennessee Army National Guard on 10 February 2004.  He successfully completed basic training and advanced individual training and was awarded military occupational specialty 19K (M1 Armor Crewman).

3.  On 17 June 2004, the applicant was ordered to active duty in support of Operation Iraqi Freedom (OIF).

4.  A DA Form 4187 (Personnel Action), dated 30 May 2005, shows the applicant was promoted to the rank and pay grade of SPC/E-4 effective 4 May 2005.

5.  On 14 June 2005, the applicant was honorably released from active duty.  His DD Form 214 for the period ending 14 June 2005 shows:

	a.  he was awarded the National Defense Service Medal, the Global War on Terrorism Service Medal, the Armed Forces Reserve Medal with Mobilization Device, and the Army Service Ribbon;

	b. in item 4a (Grade, Rate, or Rank) the rank "PV2";

	c.  in item 4b (Pay Grade) the grade "E-2";

	d.  in item 12f (Foreign Service) the entry "0000" year(s), "00" month(s), and "00" day(s);

	e.  item 12h (Effective Date of Pay Grade) the entry "2004" year(s), "03" month(s), and "01" day(s); and

	f.  item 18 (Remarks) does not have a entry for the period of service he served in Iraq.

6.  On 23 June 2009, the Defense Finance and Accounting Service (DFAS) confirmed the applicant's service in a combat zone receiving hostile fire pay (HFP) for the period 1 June 2004 through 31 May 2005 in Iraq.  It is noted that there is no evidence in the applicant's records and he did not provide evidence to verify the exact from and through dates he served in Iraq.

7.  Department of Defense Financial Management Regulation, volume 7A (Military Pay Policy and Procedures - Active Duty and Reserve Pay), in pertinent part, provides that HFP or imminent danger pay (IDP) is payable at a monthly rate in addition to all other pays or allowances.  Further, 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.

8.  Army Regulation 600-8-22 (Military Awards) states that individuals authorized the Iraq Campaign Medal must have served in direct support of 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.  A bronze service star is authorized for the following campaigns:  Liberation of Iraq, 19 March 2003-1 May 2003; Transition of Iraq, 2 May 2003-28 June 2004; Iraqi Governance, 29 June 2004-15 December 2005; and National Resolution, 16 December 2005-date to be determined.

9.  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 preparation of the DD Form 214.

10.  Army Regulation 635-5 states, for a Reserve Soldier ordered to active duty and deployed to a foreign country, enter the following three statements in succession in item 18:  (1) "ORDERED TO ACTIVE DUTY IN SUPPORT OF (OPERATION NAME) PER 10 USC (APPLICABLE SECTION)," (2) "SERVICE IN (NAME OF COUNTRY DEPLOYED) FROM (INCLUSIVE DATES, FOR EXAMPLE, YYYYMMDD-YYYYMMDD)," and (3) "SOLDIER COMPLETED PERIOD FOR WHICH ORDERED TO ACTIVE DUTY FOR PURPOSE OF POST-SERVICE BENEFITS AND ENTITLEMENTS."

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was promoted to the rank and grade of SPC/E-4 effective 4 May 2005.  Therefore, his DD Form 214 should be corrected to show his rank as SPC/E-4 with an effective date of 4 May 2005.

2.  Based on DFAS confirmation that the applicant deployed and received hostile fire pay for the period 1 June 2004 through 31 May 2005 in Iraq, he is eligible for award of the Iraq Campaign Medal with two bronze service stars for his service in Iraq.  This award should be added to his DD Form 214.

3.  The applicant has provided no evidence to show the exact period he served in Iraq.  Although DFAS confirmed he received hostile fire pay for the period 1 June 2004 through 31 May 2005 while serving in Iraq there is no evidence in his records that shows the exact period of his service in Iraq (i.e., awards, movement orders, etc.).  Therefore, there is insufficient evidence to change item 12f or item 18 of his DD Form 214 at this time.  He may apply for reconsideration if he can provide his exact period of deployment.

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:

	a.  by amending his DD Form 214 in item 4a to read, "SPC";

	b.  by amending his DD Form 214 in item 4B to read, "E-4";

	c.  by amending his DD Form 214 in item 12h to read, "2005" year(s), "05" month(s), and "04" day(s); and

	d.  by amending his DD Form 214 in item 13 to add the Iraq Campaign Medal with two bronze service stars.


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 correcting the applicant's records to show his foreign service or period of 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)                                         AR20090005820



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ABCMR Record of Proceedings (cont)                                         AR20090005820



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