IN THE CASE OF:	  

		BOARD DATE:	  24 November 2009

		DOCKET NUMBER:  AR20090009723 


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 award of the Purple Heart, the Iraq Campaign Medal and any other awards/decorations he may be eligible for as a result of his military service.

2.  The applicant states he served in Iraq and was injured by a roadside bomb.  He states he was awarded the Purple Heart and that there may be additional awards, like the Iraq Campaign Medal, that he may be eligible for but that are not on his DD Form 214.

3.  The applicant provides a copy of orders and an award certificate confirming award of the Purple Heart 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.  Records available to the Board indicate the applicant enlisted and entered active duty as a Regular Army Soldier on 2 May 2001.  In January 2002 he was assigned to an infantry unit in Germany as a cavalry scout (military occupational specialty 19D).

3.  In February 2004 he deployed with his unit to Iraq where, on 23 June 2004, he was wounded as a result of hostile action.  His records confirm he was awarded the Purple Heart in orders issued by the 1st Infantry Division on 5 July 2004.

4.  On 7 October 2004 the applicant was involuntarily discharged under the provisions of Chapter 9, Army Regulation 635-200 as an alcohol rehabilitation failure.  His service was initially characterized as under honorable conditions but was upgraded to fully honorable by the Army Discharge Review Board in August 2006.

5.  Item 13, (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) on his 2004 DD Form 214 reflects the following:

	a.  National Defense Service Medal
	b.  Army Service Ribbon
	c.  Overseas Service Ribbon
	d.  Global War on Terrorism Service Medal
	e.  Global War on Terrorism Expeditionary Medal

6.  Army Regulation 600-8-22 (Military Awards) states that individuals authorized the Iraq Campaign Medal must have served in direct support of Operation Iraqi Freedom (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.  Service members qualified for the Global War on Terrorism Expeditionary Medal by reasons of service between 19 March 2003 and 
28 February 2005, in an area for which the Iraq Campaign Medal was subsequently authorized, will remain qualified for that medal.  Upon application, any such service member may be awarded the Iraq Campaign Medal in lieu of the Global War on Terrorism Expeditionary Medal for such service.  No service member will be entitled to both medals for the same act, achievement or period of service. 
7.  In keeping with the policies of the Board, an attempt was made to contact the applicant telephonically to determine if he wished to be awarded the Iraq Campaign Medal in lieu of the Global War on Terrorism Expeditionary Medal.  The applicant did not respond to messages left on his voice mail.

8.  On 2 May 2005, the Chief of Staff of the Army approved the creation of the Combat Action Badge to provide special recognition to Soldiers who personally engaged, or are engaged by, the enemy.  Army Regulation 600-8-22 (Military Awards) states the requirements for award of the Combat Action Badge are branch and MOS immaterial.  Assignment to a combat arms unit or a unit organized to conduct close or offensive combat operations, or performing offensive combat operations is not required to qualify for the Combat Action Badge.  However, it is not intended to award the Combat Action Badge to all Soldiers who serve in a combat zone or imminent danger area.  The Soldier must be performing assigned duties in an area where hostile fire pay or imminent danger pay is authorized.  The Soldier must be personally present and actively engaging or being engaged by the enemy, and performing satisfactorily in accordance with the prescribed rules of engagement.  The Soldier must [not] be assigned or attached to a unit that would qualify the Soldier for the Combat Infantryman Badge or the Combat Medical Badge.

DISCUSSION AND CONCLUSIONS:

1.  The evidence confirms the applicant was wounded as a result of hostile action in Iraq on 23 June 2004 and awarded the Purple Heart.  His separation document should be corrected accordingly.

2.  The applicant’s award of the Purple Heart is evidence that he was personally present and actively engaged or was being engaged by the enemy and as such he would also be eligible for award of the Combat Action Badge.  The fact that the badge was not announced until after his separation from active duty would explain why he was never considered for or awarded this badge.

3.  The available evidence also shows the applicant served a qualifying tour of duty in Iraq for award of the Iraq Campaign Medal and he was previously awarded the Global War on Terrorism Expeditionary Medal in recognition of that service.  He is not eligible to receive both the Global War on Terrorism Expeditionary Medal and the Iraq Campaign Medal.  In view of the fact that he has not indicated that he wished to exchange the Global War on Terrorism Expeditionary Medal for the Iraq Campaign Medal that portion of his request cannot be granted.  Should the applicant wish to exchange the Global War on Terrorism Expeditionary Medal for the Iraq Campaign Medal he is advised to submit a request to the Board stating that desire.
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 Combat Action Badge; and

	b.  amending his 2004 DD Form 214 by adding the Purple Heart and the Combat Action Badge.

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 award of the Iraq Campaign Medal.





      _______ _  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)                                         AR20090009723



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ABCMR Record of Proceedings (cont)                                         AR20090009723



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