IN THE CASE OF:	  

		BOARD DATE:	       22 SEPTEMBER 2009

		DOCKET NUMBER:  AR20090007329 


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) to show his foreign service in Cuba and all unit citations.  

2.  The applicant states he was deployed to Cuba with the 1st Battalion, 12th Infantry, and was attached to the 32nd Transportation Company.  

3.  The applicant provides a copy of his DD Form 214, dated 27 November 1996; a copy of Orders 55-280, issued by Headquarters, 4th Infantry Division (Mechanized), Fort Carson, CO, on 25 March 1994; and a copy of his DA Form 2-1 (Personnel Qualification Record), in support of his request.

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 records show he enlisted in the U.S. Army Reserve (USAR) on 15 September 1992.  He subsequently entered active duty for training (ADT) on 7 June 1993, completed basic combat and advanced individual training, and was awarded military occupational specialty (MOS) 88M (Motor Transport Operator).  He was honorably released from ADT to the control of his USAR unit on 17 September 1993.  

3.  The applicant's records also show he enlisted in Regular Army for a period of 3 years on 24 March 1994.  He was subsequently assigned to Headquarters and Headquarters Company (HHC), 1st Battalion, 12th Infantry, Fort Carson, CO, effective 30 March 1994, and was reassigned to the 32nd Transportation Company, Fort Carson, CO, on 14 June 1995.  

4.  The applicant's records further show he was discharged on 27 November 1996 by reason of misconduct.  The DD Form 214 he was issued shows he completed 2 years, 7 months, and 25 days of creditable active service.  This form also shows the following entries:

	a.  Item 12f (Foreign Service) shows the entry "0000  00  00";

	b.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) shows he was awarded the Army Achievement Medal, the National Defense Service Medal, the Army Service Ribbon, and the Marksman Marksmanship Qualification Badge with Rifle Bar; and

	c.  Item 18 (Remarks) does not indicate he completed any foreign service.

5.  The applicant's records contain a DA Form 638 (Recommendation for Award), dated 21 January 1995, that shows he was awarded the Army Achievement Medal for meritorious achievement while assigned to HHC, 1st Battalion, 12th Infantry, during the period 29 August 1994 to 7 February 1995 in support of Operation Sea Signal.  This form also shows the following entries:

	a.  Achievement #1 shows the entry "while deployed on Operation Sea Signal in Guantanamo Bay, Cuba, he rendered and absolute superb performance as a motor transport operator for migrant logistical support"; and

	b.  Achievement #3 shows the entry "he assisted the camp relocation of over 7,000 Cuban migrants.  While working under stressful situations he maintained his vehicle by continuous preventive maint (enance) checks."


6.  An email, dated 3 September 2009, from The Defense Finance and Accounting Service (DFAS), Indianapolis, IN, confirms that the applicant received Foreign Duty Pay from 29 August 1994 to 31 January 1995 for service in an unknown location.

7.  Department of Defense Financial Management Regulation, chapter 17, provides for Foreign Duty Pay (FDP) (Hardship Duty Pay (HDP) supersedes FDP effective 4 February 1999).  FDP is payable to enlisted members otherwise entitled to basic pay who are assigned to duty at certain places outside the 48 contiguous states and the District of Columbia, as designated by the Secretary of Defense.  The commander of the major command in which a designated place is located will issue a local directive to all concerned to identify the perimeter of the designated area, and list the units or installations included therein.  Enlisted members assigned to duty in Cuba are entitled to foreign duty pay.  All members serving on permanent change of station (PCS) in a designated area, or serving in a temporary duty (TDY) or deployed status for over 30 consecutive days in the area will receive FDP.  Members on permanent reassignment to the area will be eligible from the day of arrival.  Members TDY to the area are not eligible during the first 30 days of consecutive service at the designated location.  On the 31st day, FDP will be payable retroactive to the date of reporting.  Entitlement to FDP terminates the day before a member departs PCS 

8.  The Soldiers Programs and services Division, Awards and Decorations Branch, U.S. Army Human Resources Command website lists all approved unit awards.  This website shows the 1st Battalion, 12th Infantry, and the 32nd Transportation Company, were awarded various meritorious and/or valorous unit awards throughout their history; none of which were during the applicant's assignment to either unit.

9.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  The regulation currently in effect directs, in pertinent part, that the purpose of the separation document is to provide the individual with documentary evidence of their military service.  It is important that information entered on the form be complete and accurate.  The DD Form 214 is a summary of a Soldier's most recent period of continuous active duty to include attendance at basic and advanced training and will be prepared for all personnel at the time of their retirement, discharge, or release from active duty.   Chapter 2 contains guidance on the preparation of the DD Form 214.  It states, in pertinent part, that the total amount of foreign service completed during the period covered by the DD Form 214 is entered in Item 12f and is obtained from the Soldier’s Enlisted/Officer Record Brief.  Additionally, the "Remarks" block of the Soldier's DD Form 214 is used for mandatory requirements when a separate block is not available.  For an active duty Soldier deployed with his or her unit during their continuous period of active service, enter the statement "Service in (Name of County Deployed) from (inclusive dates for example, YYYYMMDD – YYYYMMDD).”

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DD Form 214 should be corrected to show his service in Cuba and all appropriate unit citations. 

2.  The applicant’s DA Form 638 shows he was awarded the Army Achievement Medal for meritorious achievement during the period 29 August 1994 to 7 February 1995 in support of Operation Sea Signal in Cuba.  He also received FDP from 29 August 1994 to 31 January 1995.  It appears that the applicant's period of service shown on the DA Form 638 is consistent with his pay records at DFAS.  Therefore, there is sufficient evidence that shows he completed a period of 5 months and 3 days of foreign service in Cuba from 29 August 1994 to 31 January 1995 (the date FDP was terminated) and is entitled to correction of his records to show this period of foreign service.

3.  With respect to any unit citations, the evidence of record shows that the applicant's units' of assignment were awarded various meritorious and/or valorous unit awards throughout their history; however, none was awarded during the applicant's assignment to either unit.

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:

	a.  deleting the entry "0000  00  00" from Item 12f of the applicant’s DD Form 214 and adding the entry "0000  05  03"; and 

	b.  adding the entry "Service in Cuba 19940831 to 19950131" to Item 18 of his DD Form 214.

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 any unit citations. 




      _______ _   ___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)                                         AR20090007329



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ABCMR Record of Proceedings (cont)                                         AR20090007329



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