IN THE CASE OF:	  

		BOARD DATE:	  17 December 2009

		DOCKET NUMBER:  AR20090009722 


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 items 4a (Grade, Rate, or Rank) and 4b (Pay Grade) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 7 May 2004 to show sergeant (SGT)/E-5 instead of specialist (SPC)/E-4.  He also requests, in effect, award of the Iraq Campaign Medal and the Humanitarian Service Medal and that these medals be mailed to him.

2.  The applicant states that he was promoted to E-5 but his DD Form 214 shows his rank as E-4.  He also states he is entitled to the Iraq Campaign Medal and the Humanitarian Service Medal.

3.  The applicant provides a copy of his DD Form 214 for the period ending 
7 May 2004 in support of his application.

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 requested award of the Iraq Campaign Medal to be added to his DD Form 214.  On 10 November 2009, the applicant was notified by separate correspondence that he was eligible for either the Global War on Terrorism Expeditionary Medal (GWOTEM), which is already shown on his DD Form 214, or the Iraq Campaign Medal for qualifying service in recognition of his service in Iraq.  He was also advised that if he chose the Iraq Campaign Medal, the GWOTEM would be removed from his DD Form 214 and that if he did not respond to the correspondence the GWOTEM would remain on his DD Form 214 as the authorized award for his service in Iraq.  The applicant did not respond to the notification.

3.  Having prior service, the applicant was ordered to active duty from the Army National Guard on 10 February 2003 in support of Operations Enduring Freedom.  On 7 May 2004, he was released from active duty in the rank of SPC/E-4.

4.  Item 4a of the applicant's DD Form 214 for the period ending 7 May 2004 shows the entry "SPC."  Item 4b shows the entry "E4."  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows the National Defense Service Medal (2nd Award), GWOTEM, Global War on Terrorism Service Medal, Armed Forces Expeditionary Medal, Armed Forces Reserve Medal with "M" Device, Southwest Asia Service Medal with one bronze service star, Army Service Ribbon, and two awards of the Overseas Service Bar as authorized awards.  Item 18 (Remarks) of this DD Form 214 shows, among other entries, the entry "PLACE OF DUTY: SAN BRUO CA/FORT LEWIS WA/KUWAIT/IRAQ//SOLDIER DID SERVE IN AN IMMINENT DANGER PAY AREA."

5.  Discharge orders, dated 10 April 2004, show the applicant was released from active duty effective 7 May 2004 in the rank of SPC.

6.  Orders, dated 7 June 2004, show the applicant was promoted to SGT, effective 1 June 2004.

7.  There is no evidence of record which shows the applicant participated in a Department of Defense approved military act or operation of a humanitarian nature.

7.  Records at the Defense Finance and Accounting Service (DFAS) show the applicant received hostile pay/imminent danger pay from 2 May 2003 to 5 April 2004 for service in Kuwait.

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 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.

10.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Humanitarian Service Medal is awarded to members who distinguished themselves by meritorious direct participation in a Department of Defense approved significant military act or operation of a humanitarian nature.  A service member must be on active duty at the time of direct participation, must have directly participated in the humanitarian act or operation within the designated geographical area of operation and within specified time limits, and must provide evidence that substantiates direct participation.

DISCUSSION AND CONCLUSIONS:

1.  The DD Form 214 is a "snapshot in time" and is a reflection of the applicant's record of active Army service at the time of his separation from active duty.  Evidence of record shows the applicant was a SPC at the time of his release from active duty, which is properly reflected in items 4a and 4b of his DD Form 214 for the period ending 7 May 2004.  Since the applicant was promoted to sergeant in the Army National Guard after his release from active duty on 1 June 2004, there is no basis for amending items 4a and 4b on his DD Form 214 for the period ending 7 May 2004.

2.  There is no evidence of record, and the applicant provided no evidence, which shows he participated in a Department of Defense approved military act or operation of a humanitarian nature.  Therefore, there is insufficient evidence on which to base award of the Humanitarian Service Medal.

3.  The applicant also requests, in effect, that the medals for the Iraq Campaign Medal and the Humanitarian Service Medal, for which he is entitled, be mailed to him.  Since the applicant failed to make an election, he is not entitled to the Iraq Campaign Medal.  He also is not entitled to the Humanitarian Service Medal.  Therefore, there is no basis for issuing these medals.  However, the applicant 
may receive replacement medals for the awards shown on his DD Form 214 by submitting a request via a letter or the Standard Form (SF) 180 (Request Pertaining to Military Records) to the following address: National Personnel Records Center, ATTN:  Army Reference Branch, 9700 Page Avenue, St. Louis, Missouri 63132-5100.  Requests must include a copy of the DD Form 214 and any other supporting documentation to substantiate the request.  The SF 180 can be found at http://www.archives.gov.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__X____  ____X___  ____X___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      ___________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)                                         AR20090009722



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090009722



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1