IN THE CASE OF:	  

		BOARD DATE:	  20 April 2010

		DOCKET NUMBER:  AR20090008568 


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 military records by:

	a.  paying him a non-prior service enlistment bonus in the amount of $2,500.00 per his Army National Guard (ARNG) enlistment contract, dated 22 February 1999;

	b.  showing his foreign service in Iraq on his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 5 February 2004;

	c.  awarding him the Army Good Conduct Medal; and

	d.  paying him an affiliation bonus per his U.S. Army Reserve (USAR) enlistment contract, dated 3 December 2003.

2.  The applicant states, in effect, that he was never paid the non-prior service enlistment bonus or affiliation bonus per the terms of his enlistment contracts, dated 22 February 1999 and 3 December 2003, respectively.  He also states he is entitled to award of the Army Good Conduct Medal based upon his completion of at least 3 years of honorable service.  He concludes his DD Form 214 for the period ending 5 February 2004 should be corrected to show his service in Iraq.

3.  In support of this request, the applicant provides:

	a.  unit deployment orders, dated 6 February 2003;

	b.  letter orders, dated 15 August 2003, awarding him the Driver and Mechanic Badge with Driver-W Bar [for wheeled vehicles];

	c.  a memorandum, dated 15 October 2003, authorizing his early return from Southwest Asia;

	d.  a memorandum, dated 3 November 2003, showing the dates of his deployment to Southwest Asia;

	e.  a DD Form 1351-2 (Travel Voucher or Subvoucher), dated 4 November 2003;

	f.  a DA Form 3540-R (Certificate and Acknowledgement of USAR Service Requirements and Methods of Fulfillment), dated 3 December 2003; and

	g.  a DA Form 5261-3-R (Selected Reserve Incentive Program - Affiliation Bonus Addendum), dated 3 December 2003.

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 record shows he enlisted in the Nebraska ARNG (NEARNG) on 22 February 1999 for a period of 8 years.  He completed basic combat training and advanced individual training.  Upon completion of training he was awarded military occupational specialty 75B (Personnel Administration Specialist).

3.  The applicant's enlistment contract, dated 22 February 1999,

	a.  shows he acknowledged the fact he incurred a statutory military service obligation of 8 years;

	b.  shows the enlistment option he selected provided that he would be a member of an ARNG unit for a period of 6 years and a member of the Individual Ready Reserve or the Inactive National Guard for the balance of his 8-year service obligation unless he elected to remain with the ARNG unit or unless he was completely discharged from this enlistment agreement; and

	c.  contains a document, dated 8 February 1999, which shows he qualified for and accepted the $2,500.00 non-prior service enlistment bonus.

4.  The applicant's record contains a National Guard Bureau Form 22 (Report of Separation and Record of Service) showing he was discharged from the NEARNG for enlistment in any branch of the Armed Forces effective 5 February 2001.  At the time of his discharge he had completed a total of 1 year, 11 months, and 14 days of service.

5.  The applicant's available military personnel record is devoid of any evidence and he has not provided any evidence showing the payment history and/or the recoupment of a non-prior service enlistment bonus for his abbreviated tour of service in the NEARNG.

6.  The applicant enlisted in the Regular Army for a period of 3 years and entered active duty on 6 February 2001.  His enlistment contract did not indicate either eligibility for or acceptance of a bonus.

7.  The applicant provides U.S. Army Field Artillery Center and Fort Sill, Fort Sill, Oklahoma, Orders 037-306, dated 6 February 2003, showing he was deployed as a member of his unit to the U.S. Central Command (CENTCOM) area of responsibility (AOR) in support of Operation Enduring Freedom for a period of 179 days beginning on or about 15 February 2003.

8.  The applicant provides Headquarters, 6th Battalion, 27th Field Artillery, letter orders, dated 15 August 2003, awarding him the Driver and Mechanic Badge with Driver-W Bar for the period of 1 July 2002 to 1 July 2003.

9.  The applicant provides a Headquarters and Headquarters Battery, 17th Field Artillery Brigade, memorandum, dated 15 October 2003, approving his early departure from the CENTCOM AOR on 20 October 2003 in order to undergo transition processing prior to his expiration of term of service on 5 February 2004. 
This memorandum also shows the applicant was approved for Special Leave Accrual Type I because he was in theater for more than 120 days and eligible for hostile fire pay and imminent danger pay.

10.  The applicant provides a Headquarters, 6th Battalion, 27th Field Artillery, III Corps Artillery, Fort Sill, Oklahoma, memorandum, dated 3 November 2003, showing he deployed to the CENTCOM AOR located in Southwest Asia for the period 5 April 2003 to 27 October 2003.

11.  The applicant provides a DD Form 1351-2, dated 4 November 2003, wherein he indicated he departed Fort Sill, Oklahoma, on 7 April 2003 and deployed to the countries of Kuwait, Qatar, and Iraq and returned to Fort Sill on 29 October 2003.  Although this form bears what appear to be signatures of the applicant and his supervisor, it is not signed by the approving authority and does not show it was processed through a finance office.

12.  The applicant's record contains a DD Form 214 rendered for the period 6 February 2001 through 5 February 2004 when he was discharged and transferred to Headquarters and Headquarters Company, 530th Military Police Battalion (a USAR troop program unit (TPU)).

	a.  Item 12c (Net Active Service This Period) shows he served on active duty for 3 years, 0 months, and 0 days.

	b.  Item 12f (Foreign Service) shows he served overseas 0 years, 0 months, and 0 days.

	c.  Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) shows he was awarded or authorized to wear the Army Commendation Medal, the Army Achievement Medal, the National Defense Service Medal, the Army Service Ribbon, and the Driver and Mechanic Badge with Driver-W Bar.  This form does not show award of the Army Good Conduct Medal.

	d.  Item 18 (Remarks) of this form does not show the applicant served overseas during his period of active duty.

	e.  Item 24 (Character of Service) shows his service during this period of time was categorized as honorable.

13.  A review of the applicant's service record shows no derogatory information in the form of lost time, nonjudicial punishment, or suspension of favorable personnel actions that would disqualify him for the first award of the Army Good Conduct Medal during the period the period 6 February 2001 through 5 February 2004.  There are no also entries in his record to indicate that his commanders denied him award of the Army Good Conduct Medal during this period of service.

14.  A query of the applicant's Master Military Pay Account (MMPA) maintained by the Defense Finance and Accounting Service (DFAS) revealed he received pay and tax exclusion entitlements associated with deployment to the hostile fire area of Kuwait/Iraq during the period 8 April 2003 through 28 October 2003.

15.  The applicant's record contains (and he also provides) a DA Form 3540-R, dated 3 December 2003, which shows he voluntarily elected to serve in the Selected or Ready Reserve of the USAR and that he was authorized to receive an affiliation bonus associated with his assignment to the aforementioned TPU for a period of 3 years, 0 months, and 16 days.  This form also shows that he acknowledged his:

	a.  transfer to the TPU, his obligation to begin participating with the unit immediately, and his obligation to continue satisfactory participation for the remaining portion of his statutory or contractual obligation, whichever was longer, unless removed by proper authority;

	b.  understanding of the criteria for satisfactory participation;

	c.  failure to participate satisfactorily for any reason could subject him to separation by either reassignment or discharge, which could result in a pay grade reduction and an other than other honorable characterization of his military service;

	d.  failure to participate satisfactorily for any reason could result in termination of entitlement to educational assistance under the Montgomery GI Bill, or to bonus payments and loan payments, and that he could be required to repay all or a portion of any funds he received from the U.S. Government; and

	e.  voluntary or involuntary reassignment or transfer out of the Selected Reserve would result in termination of all entitlements under the Selected Reserve Montgomery GI Bill or Selected Reserve incentives.

16.  The applicant's record contains (and he also provides) a DA Form 5261-3-R, dated 3 December 2003, which shows he acknowledged that in connection to his assignment to the TPU he:

	a.  was being assigned to a unit vacancy in the Selected Reserve;

	b.  had a remaining statutory military service obligation of 3 years, 0 months, and 16 days and the amount of his affiliation bonus was determined by the length of this obligation;

	c.  was obligated to serve in a Selected Reserve unit for the remaining period of his statutory military service obligation, satisfactorily, as prescribed by USAR regulations and this agreement, unless excused for the convenience of the government;

	d.  was entitled to payment of one-half of the bonus amount upon completion of this form and assignment to the Selected Reserve unit and the other half would be paid on the sixth anniversary date of his military service obligation, which commenced with his original enlistment in the Armed Forces;

	e.  would lose entitlement to an affiliation bonus if, in pertinent part, he was separated from his enlisted status or from a USAR Selected Reserve unit for any reason, except when separated for an authorized period of nonavailability or for entry on active duty or Full-Time National Guard Duty in an Active Guard Reserve status; and

	f.  would be subject to recoupment action in the event his entitlement to the affiliation bonus was terminated for any reason listed in paragraphs 1, 2, 4, and 5 of section VI of the form.

17.  The Integrated Web Services database maintained by the U.S. Army Human Resources Command shows the applicant's security clearance was suspended on 18 August 2005 pending actions to separate him for illegal drug possession.

18.  Headquarters, 89th Regional Readiness Command, Wichita, Kansas, Orders 05-297-00036, dated 24 October 2005, discharged the applicant from the USAR under the authority of Army Regulation 135-178 (Enlisted Administrative Separations) effective 24 October 2005.  He was issued a general discharge under honorable conditions.

19.  The applicant's available military personnel record is devoid of any evidence and he has not provided any evidence showing the payment history and/or the recoupment of an affiliation bonus for his abbreviated tour of service in the USAR.

20.  Army Regulation 135-178 provides for the separation of enlisted personnel of the USAR and ARNG.  Chapter 7 of the regulation in effect at the time established policy and prescribed procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed and an unfit medical condition (Army Regulation 40-501 (Standards of Medical Fitness)) was not the direct or substantial contributing cause of his or her misconduct.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  However, the separation authority could direct a general discharge if such was merited by the Soldier’s overall record.  Only a general court-martial convening authority could approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of the regulation.

21.  Army Regulation 600-8-22 (Military Awards) provides that the Army Good Conduct Medal is awarded to individuals who distinguish themselves by their conduct, efficiency, and fidelity during a qualifying period of active duty enlisted service.  This period is 3 years except in those cases when the period for the first award ends with the termination of a period of active Federal military service.  Although there is no automatic entitlement to the Army Good Conduct Medal, disqualification must be justified.

22.  Army Regulation 600-8-22 provides that award of the Iraq Campaign Medal 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 nonconsecutive 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; and

	c.  participate 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 1 day of eligibility).

23.  Army Regulation 600-8-22 provides that the Global War on Terrorism Service Medal is authorized for award to members of the Armed Forces of the United States who have participated in Global War on Terrorism operations outside of the designated areas of eligibility on or after 11 September 2001 to a future date to be determined.  All Soldiers on active duty, including Reserve Component Soldiers mobilized or National Guard Soldiers activated, on or after 11 September 2001 to a date to be determined, having served 
30 consecutive days or 60 nonconsecutive days, are authorized the Global War on Terrorism Service Medal.

24.  Department of the Army Military Personnel Message 10-078, dated 17 March 2010, provided guidance on the criteria, applicability, and standards for awarding and wearing of bronze service stars on the Afghanistan Campaign Medal and the Iraq Campaign Medal.  This message shows, in pertinent part, that during the applicant's tour of duty in Iraq he completed a qualifying period of service during two campaigns:  Liberation of Iraq (19 March 2003 through 1 May 2003) and Transition of Iraq (2 May 2003 through 28 June 2004).

25.  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.  In establishes standardized policy for the preparation of the DD Form 214.  In pertinent part, it states that the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge.  It is important that information entered on the form should be complete and accurate.  Chapter 2 of Army Regulation 635-5 contains guidance on the preparation of the DD Form 214.  It states, in pertinent part, that:

	a.  all decorations, badges, citations, and campaign ribbons awarded and authorized for all period of service should be entered in item 13 of the form;

	b.  the total amount of foreign service completed during their continuous period of active service will be entered as "YYYY MM DD" in item 12f of the form; and

	c.  for item 18, for an active duty Soldier deployed with his or her unit during their continuous period of active service, the statement "SERVICE IN (NAME OF COUNTRY DEPLOYED) FROM (inclusive dates for example, YYYYMMDD-YYYYMMDD)" will be entered.

26.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  Paragraph 2-9 contains guidance on the burden of proof.  It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct.  The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests correction of his military records by:

	a.  paying him a non-prior service enlistment bonus in the amount of $2,500.00 per his ARNG enlistment contract, dated 22 February 1999;

	b.  showing his foreign service in Iraq on his DD Form 214 for the period ending 5 February 2004;
	c.  awarding him the Army Good Conduct Medal; and

	d.  paying him an affiliation bonus per his USAR enlistment contract, dated 3 December 2003.

2.  A memorandum rendered by the applicant's former unit commander shows he deployed to the CENTCOM AOR in support of Operation Enduring Freedom and served in Southwest Asia for the period 5 April 2003 through 27 October 2003.  Additionally, the applicant's copy of his travel voucher indicates he departed Fort Sill, Oklahoma, on 7 April 2003 and returned on 29 October 2003.  Finally, a query of the applicant's MMPA maintained by DFAS revealed that he received pay and tax exclusion entitlements associated with deployment to a hostile fire area during the period of 8 April 2003 through 28 October 2003.

3.  Therefore, it may be deduced that the applicant served in the countries of Kuwait, Qatar, and Iraq in support of Operation Enduring Freedom during the period 8 April 2003 through 28 October 2003, for a total of 0 years, 6 months, and 21 days and item 12f and item 18 of his DD Form 214 should be amended accordingly.

4.  The evidence shows the applicant served a qualifying period of service in Iraq for award of the Iraq Campaign Medal and that he participated in two campaigns. 
Therefore, the applicant is entitled to correction of his records to show the Iraq Campaign Medal with two bronze service stars.

5.  The evidence shows the applicant served a qualifying period of service for award of the Global War on Terrorism Service Medal.  Therefore, the applicant is entitled to correction of his record to show this service medal.

6.  The evidence of record confirms the applicant honorably served on active duty during the 3-year period 6 February 2001 through 5 February 2004.  His record is void of any evidence that shows he had lost time or that he received nonjudicial punishment or court-martial action during that period of service.  There is no evidence of a suspension of favorable personnel actions or that his commander denied him award of the Army Good Conduct Medal that period of service.  Lacking any derogatory information on file that would have disqualified him, it would be appropriate to award the applicant the Army Good Conduct Medal for the period 6 February 2001 through 5 February 2004 and to correct his records to show this award.

7.  The evidence shows the applicant qualified for a $2,500.00 non-prior service enlistment bonus as a condition of his enlistment into the NEARNG for a period of 8 years.  The evidence also shows the applicant terminated this enlistment agreement with the NEARNG by voluntarily requesting separation from the NEARNG in order to enlist in the Regular Army after completing only 1 year, 11 months, and 14 days of service in the NEARNG.  His enlistment contract clearly stated he would be a member of an ARNG unit for a period of 6 years and a member of the Individual Ready Reserve or the Inactive National Guard for the balance of his 8-year service obligation unless he elected to remain with the ARNG unit or unless he was completely discharged from this enlistment agreement.

8.  The applicant's available military personnel record is devoid of any evidence and he has not provided any evidence showing the payment history and/or the recoupment of a non-prior service enlistment bonus for his abbreviated tour of service in the NEARNG.

9.  The evidence shows the applicant qualified for an affiliation bonus as a condition of his transfer to a USAR TPU and satisfactory participation for the remainder of his 3-year and 16-day statutory military service obligation.  The evidence also shows the applicant's eligibility for this bonus was terminated when he was discharged from the USAR for misconduct after completing only 1 year, 10 months, and 22 days of service in the USAR.  His enlistment contract clearly stated he would serve in a TPU in the Selected or Ready Reserve of the USAR for a period of 3 years, 0 months, and 16 days.

10.  The applicant's available military personnel record is devoid of any evidence and he has not provided any evidence showing the payment history and/or the recoupment of an affiliation bonus for his abbreviated tour of service in the USAR.

11.  The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

12.  In order to justify correction of a military record, the applicant must show or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement and there is no basis for granting his request for payment of either a $2,500.00 non-prior service enlistment bonus or an affiliation bonus.

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.  awarding him the Army Good Conduct Medal (1st Award) for the period 6 February 2001 through 5 February 2004;

	b.  deleting the current entry in item 12f of his DD Form 214 and adding the entry "0001  06  21";

	c.  adding the Army Good Conduct Medal (1st Award), the Iraq Campaign Medal with two bronze service stars, and the Global War on Terrorism Service Medal to item 13 of his DD Form 214;

	d.  adding the entry, "SERVICE IN KUWAIT QATAR AND IRAQ FROM 20030408-20031028," to item 18 of the applicant's DD Form 214; and

	e.  providing him a corrected DD Form 214 as a result of these changes.


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 payment of either a $2,500.00 non-prior service enlistment bonus or an affiliation bonus.



      ___________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)                                         AR20090008568



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ABCMR Record of Proceedings (cont)                                         AR20090008568



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