BOARD DATE:	  5 January 2010

		DOCKET NUMBER:  AR20090010964 


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 he be awarded the combat ribbon for Operation Iraqi Freedom in 2003 and this ribbon be added to his DD Form 214 (Certificate of Release or Discharge from Active Duty) (this has been accepted as a request for his DD Form 214 to be amended to add any award or decoration he was entitled to receive for his participation in Operation Iraqi Freedom).  He also requests the addition of the schools he completed (Air Assault School, Wrecker Recovery School, and Hazmat Training) to his DD Form 214.

2.  The applicant states that he has leave and earnings statements (LES) showing he was in country.

3.  The applicant provides copies of an LES and a DD Form 1610 (Request and Authorization for Temporary Duty Travel of DOD Personnel).

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 military records show that he enlisted in the Regular Army on 15 June 1999 and was awarded the military occupational specialty (MOS) of light wheel vehicle mechanic.

3.  The applicant was given a general discharge on 18 July 2003 by reason of misconduct.

4.  The Defense Finance and Accounting Service (DFAS) has verified that the applicant received hostile fire pay/imminent danger pay for duty in Kuwait from 19 March 2003 to 3 May 2003.

5.  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.

6.  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.

7.  Army Regulation 600-8-22 also states that award of the Combat Action Badge is authorized from 18 September 2001 to a date to be determined.  Award for qualifying service in any previous conflict is not authorized.  Retroactive awards of the Combat Action Badge are not authorized prior to 18 September 2001.

8.  Human Resources Command Message (Date Time Group 17 March 2004) disseminated implementing instructions for award of the Global War on Terrorism Expeditionary Medal (GWOTEM) for Soldiers who deploy abroad for service in the Global War on Terrorism Operations on or after 11 September 2001 to a date to be determined.  To be eligible for this award a Soldier must be mobilized with or assigned or attached to a unit participating in designated operations for 30 consecutive days or for 60 nonconsecutive days in the areas of eligibility designated, or must meet one of the following criteria: a)  be engaged in actual ground combat against the enemy and under circumstances involving grave danger of death or serious bodily injury from enemy action, regardless, of the time in the area of eligibility; b) while participating in the designated operation, regardless of time, is killed or wounded/injured requiring medical evacuation from the area of eligibility, or c) participate as a regularly assigned air crew member flying sorties for 30 consecutive days or 60 nonconsecutive days into, out of, within, or over the area of eligibility in direct support of Operations Enduring Freedom and/or Iraqi Freedom.  The message also states that under no condition will any Soldier in the United States receive this award. 

9.  Award of the Global War on Terrorism Service Medal (GWOTSM) is authorized to Soldiers who have participated in or served in support of Global War on Terrorism operations outside of the designated area of operations as outlined in paragraph five above.  Initial award of the GWOTSM will be limited to airport security operations (from 27 September 2001 through 31 May 2002) and Soldiers who supported Operations Noble Eagle, Enduring Freedom, and Iraqi Freedom.  As with the GWOTEM, a Soldier must have served 30 consecutive, or 60 nonconsecutive days.  HRC Awards Branch personnel have advised that the GWOTSM has been awarded, and will continue to be awarded, to all Army personnel who serve on active duty for 30 consecutive days, or more, regardless of where they serve (the same criteria as the National Defense Service Medal).

10.  Soldiers may receive both the GWOTEM and the GWOTSM if they meet the requirements of both awards.  However, the same period of service establishing eligibility for one cannot be used to justify service eligibility for the other.

DISCUSSION AND CONCLUSIONS:

1.  While the applicant was in Kuwait, there is no evidence that he personally engaged or was engaged by the enemy.  As such, he is not entitled to the Combat Action Badge.

2.  The applicant's records do not contain any information pertaining to his attendance or completion of schools.  As such, there is insufficient evidence in which to grant this portion of his request.

3.  However, the applicant's LESs and DFAS have confirmed that he was deployed to Kuwait during OIF.  As such, he is entitled to the GWOTSM and GWOTEM.



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 the DD Form 214 of the individual concerned be corrected by adding the GWOTSM and the GWOTEM.

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 the Combat Action Badge and the addition of any schools to his DD form 214.




      __________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)                                         AR20090010964



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ABCMR Record of Proceedings (cont)                                         AR20090010964



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