IN THE CASE OF:	  

		BOARD DATE:	       24 SEPTEMBER 2009

		DOCKET NUMBER:  AR20090008529 


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 the Combat Action Badge be added to his DD Form 214 (Certificate of Release or Discharge from Active Duty) and that the dates of his service in Iraq be amended.  The dates currently show he served in Iraq in 2004-2005; however, his service there began in 2003 and ended in 2004.

2.  The applicant submitted no additional statement or argument in justification for his request other than that already expressed in his request.

3.  The applicant submitted no additional documentary evidence 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 evidence shows the applicant enlisted in the U.S. Army Reserve Delayed Entry Program on 29 January 1996.  On 27 February 1996, he enlisted in the Regular Army.  He successfully completed basic combat and advanced individual training.  On completion of this training, he was awarded the military occupational specialty 63J (Quartermaster and Chemical Equipment Repairer).

3.  The evidence shows that the applicant was honorably discharged for the purpose of immediate reenlistment in the Regular Army on 3 June 1998.  He reenlisted in the Regular Army for 4 years on 4 June 1998 and continued to serve on this period of enlistment until 9 July 2001 when he was again honorably discharged for the purpose of immediate reenlistment.  On 10 July 2001, the applicant reenlisted in the Regular Army for 4 years.

4.  The applicant was honorably discharged in the rank and pay grade of specialist, E-4, on 9 July 2005 under the provisions of Army Regulation 635-200 (Enlisted Separations) at the completion of his required active service.  On the date of his discharge, the applicant had completed 9 years, 4 months, and 13 days of net active service with no time lost.

5.  Item 12f (Foreign Service) of the applicant's DD Form 214 shows the applicant completed 6 years, 2 months, and 12 days of foreign service.

6.  Item 5 (Overseas Service) of the applicant's DA Form 2-1 (Personnel Qualification Record, Part II) shows he was assigned to Kuwait on a temporary duty basis for the period 20 September 1996 through 15 December 1996 for a period of 3 months [actually 2 months and 26 days].  The Gulf War Participant's List shows the applicant deployed to the Gulf War and served there from 1 October 1995 through 31 December 1995, a period of 3 months and 1 day.

7.  Item 5 of the applicant's DA Form 2-1 also shows the applicant served in Germany for the period 4 February 1999 through 2 February 2002, a period of 3 years.  Other overseas service the applicant might have served during his time in the Army could not be verified to arrive at the 6 years, 2 months, and 12 days recorded on his DD Form 214.

8.  An entry appears in item 18 (Remarks) of the applicant's DD Form 214 showing he was deployed to and served in Iraq for the period 1 April 2004 through 31 July 2005.  The applicant contends the calendar years shown are incorrect.  No other deployment or service in a hostile fire/imminent danger pay area is shown on the applicant's DD Form 214.

9.  On 24 August 2009, an ABCMR staff member submitted an inquiry to the Defense Finance and Accounting Service requesting verification of the actual calendar years the applicant served in Iraq.  The ABCMR staff member explained that the applicant's records showed he served in Iraq from 1 April 2004 through 31 July 2005, but the applicant stated that it should be for calendar years 2003 through 2004.

10.  On the same date, a Defense Finance and Accounting Service representative responded to the inquiry that according to information resident in the Master Military Pay Account, the applicant had served in a combat zone and had received hostile fire/imminent danger pay and a combat zone tax exclusion for the period 29 April 2003 through 18 July 2004.

11.  Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 shows he was awarded the Army Achievement Medal, the Presidential Unit Citation (Army), the National Defense Service Medal, the Global War on Terrorism Expeditionary Medal, the Global War on Terrorism Service Medal, and the Army Service Ribbon.  No other awards or decorations are shown as having been awarded or authorized, to include the Combat Action Badge.

12.  The applicant requested that the Combat Action Badge be added to his DD Form 214; however, the applicant did not provide a copy of orders awarding him the badge.  In addition, there are no orders or other evidence on file in his official military personnel file which confirms award of this decoration to him.  It appears the applicant has failed to exhaust administrative remedies that are available to him in having this badge awarded to him.  In the absence of authority for this award, the applicant may submit a request for a retroactive award of the Combat Action Badge to the U.S. Army Human Resources Command, AHRC-PDO-PA, Alexandria, VA 22332-0471.  The applicant has been notified by separate correspondence of the procedures for applying for a retroactive award for the Combat Action Badge as provided for in Army Regulation 600-8-22 (Military Awards), chapter 8, paragraph 
8-8.  As a result, the applicant's request for award of the Combat Action Badge will not be discussed further in this Record of Proceedings.

13.  Army Regulation 635-5 (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 establishes standardized policy for preparing and distributing the DD Form 214.  The edition of this regulation in effect on the date of the applicant's discharge specified that total active duty outside the continental limits of the United States for the period covered by the DD Form 214 would be entered in item 12f.

14.  Army Regulation 635-5, paragraph 2-4h(18)(f), prescribes that for an active duty Soldier deployed with his or her unit during their continuous period of active service, an entry will be made in item 18 of the Soldier's DD Form 214 as follows to document his or her foreign service:  SERVICE IN (NAME OF COUNTRY DEPLOYED) FROM (inclusive dates for example, YYYYMMDD-YYYYMMDD).

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the period of his service in Iraq shown on his DD Form 214 (SERVICE IN IRAQ 20040401-20050731) is incorrect and should be amended to show calendar years 2003-2004.

2.  The evidence of record shows that the applicant was deployed to Southwest Asia two times during his service in the Army.  The applicant served in Southwest Asia in support of Operation Desert Shield/Desert Storm.  The Gulf War Participant's List indicates he served there for the period 1 October 1995 through 31 December 1995, but this is obviously an error as he did not even enlist until February 1996.  His DA Form 2-1, which shows he served from        20 September 1996 through 15 December 1996 is accepted as a more accurate record of his service in Kuwait in support of Operation Desert Shield/Desert Storm.  Records at the Defense Finance and Accounting Service also show he served in Iraq for the period 29 April 2003 through 18 July 2004.

3.  Based on the evidence of record, the applicant is entitled to a correction of item 18 of his DD Form 214 to shows the correct dates of his service in Iraq and to have his earlier deployment to Southwest Asia also shown on his DD Form 214.  He is therefore entitled to a correction of item 18 of his DD Form 214 to show the following entries:  SERVICE IN KUWAIT FROM 19960920-19961215 and SERVICE IN IRAQ FROM 20030429-20040718.

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 the following entry from item 18 of the applicant's DD Form 214:  SERVICE IN IRAQ 20040401-20050731; and

	b.  adding the following entry to item 18 of the applicant's DD Form 214:  SERVICE IN KUWAIT FROM 19960920-19961215 and SERVICE IN IRAQ FROM 20030429-20040718.




      ___________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)                                         AR20090008529



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ABCMR Record of Proceedings (cont)                                         AR20090008529



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