IN THE CASE OF:	

		BOARD DATE:	8 December 2009  

		DOCKET NUMBER:  AR20090011495 


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, in effect, that he be awarded the Combat Action Badge (CAB) for his service in Afghanistan and another for his service in Iraq, Afghanistan Campaign Medal (ACM), Iraq Campaign Medal (ICM), and the Army Good Conduct Medal (AGCM).

2.  The applicant states, in effect, that he did not receive these awards and he believes that he is entitled to have them awarded and entered on his records.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 4 May 2005.

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, in effect, that he be awarded the CAB for his service in Afghanistan during the period 11 July 2002 to 18 January 2003.  Paragraph
2-5, Section II, Army Regulation 15-185 (Army Board for Correction of Military Records), the regulation under which this Board operates, states that the Board will not consider any application if it determines that the applicant has not exhausted all administrative remedies available.  There is no evidence that the applicant submitted an application to the U.S. Army Human Resources Command (USAHRC), ATTN: AHRC-PDO-PA, 200 Stovall Street, Alexandria, VA 22332-0471, with supporting documentation, for a retroactive award of the CAB, and that he was denied this award.  Therefore, this portion of the applicant's request will not be discussed further in these proceedings.

3.  The applicant enlisted in the Regular Army (RA) on 2 October 2000 for a period of 3 years, training in military occupational specialty (MOS) 12B as a combat engineer, assignment to the 82d Airborne Division, and a cash enlistment bonus.  He successfully completed his basic combat, advanced individual, and airborne training and he was assigned to the 82d Airborne Division at Fort Bragg, NC.

4.  The applicant was deployed with his unit to Afghanistan in support of Operation Enduring Freedom from 11 July 2002 to 18 January 2003.

5.  On 1 October 2003, he was honorably released from active duty (REFRAD) due to completion of required service.  He had served 3 years of total active service.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 for the period ending
1 October 2003 shows the Army Commendation Medal (ARCOM), Army Achievement Medal (AAM), National Defense Service Medal (NDSM), Army Service Ribbon (ASR), Parachutist Badge, Bronze German Armed Forces Parachutist Badge, and the Expert Marksmanship Qualification Badge with Rifle Bar.

6.  A review of his records failed to show any derogatory information that would serve to disqualify him or any action by the commander to disqualify him for award of the AGCM.

7.  At the time of his REFRAD, the applicant elected to be transferred to a California Army National Guard (CAARNG) unit for the remainder of his statutory service obligation.

8.  On 17 January 2004, the applicant was ordered to active duty with his unit in support of Operation Iraqi Freedom (OIF) and he deployed to Iraq on 15 March 2004.  He was promoted to the pay grade of E-5 on 1 May 2004 and he departed Iraq on 17 February 2005 for transfer to Fort Lewis, WA.
9.  On 4 May 2005, he was honorably REFRAD due to completion of required active service.  He had served 1 year, 3 months and 18 days of active service during his mobilization.  Item 13 of his DD Form 214 for the period ending 4 May 2005 shows the ARCOM (2d award), AAM (second award), NDSM, Global War on Terrorism Expeditionary Medal (GWOTEM), Global War on Terrorism Service Medal (GWOTSM), Armed Forces Reserve Medal with "M" Device, ASR, parachutist badge, Driver and Mechanic Badge with Driver-W Bar, and the Bronze German Armed Forces Parachutist Badge.

10.  On 31 July 2005, he was honorably discharged from the CAARNG and he was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement).  Item 15 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Award This Period) of his NGB 22E (Report of Separation and Record of Service) shows the ARCOM (2d award), AAM (2nd award), NDSM, GWOTSM, GWOTEM, Armed Forces Reserve Medal with "M" Device, ASR, AGCM, Overseas Service Ribbon (OSR) (2nd award), Parachutist Badge, and the Driver and Mechanic Badge with Driver-W Bar.

11.  On 26 January 2006, State of California, Joint Forces Headquarters, Sacramento, CA Permanent Orders 026-539 were published awarding the applicant the CAB (1st award) for actively engaging or being engaged by the enemy on 10 November 2004.  On 18 December 2007, he was honorably discharged from the USAR.

12.  In the processing of this case a staff member of the Board attempted to contact the applicant via telephone in regards to his making a choice between the GWOTEM and the ACM or the ICM because an individual cannot receive both awards for the same service.  A message was left on his answering machine and sent to his email address; however, no response has been received.

13.  Army Regulation 600-8-22 provides that the AGCM 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 Federal military service.  Although there is no automatic entitlement to the AGCM, disqualification must be justified.

14.  Army Regulation 600-8-22 states that the GWOTEM is authorized for award to members of the Armed Forces of the United States who deployed abroad for service in the Global War on Terrorism Operations on or after 11 September 
2001 to a date to be determined.  The general area of eligibility (AOE) encompasses all foreign land, water, and air spaces outside the fifty states of the 
United States and outside 200 nautical miles of the shores of the United States.  The Secretary of Defense, when recommended by the Chairman, Joint Chiefs of Staff, will designate the specific area of eligibility per qualifying operation. 

   a.  Service members must be assigned, attached or mobilized to a unit participating in designated operations for 30 consecutive days or 60 nonconsecutive days in the AOE, or meet one of the following criteria:

   (1)  be engaged in actual combat against the enemy and under 
circumstances involving grave danger of death or serious bodily injury from enemy action, regardless of time in the AOE;

      (2)  is killed, wounded or injured requiring medical evacuation from the AO while participating in the designated operation, regardless of time; or 

      (3)  service members participating as a regularly assigned air crew member flying sorties into, out of, within, or over the AOE in direct support of Operations Enduring Freedom and/or Iraqi Freedom are eligible to qualify for award of the GWOTEM. Each day that one or more sorties are flown in accordance with these criteria will count as one day toward the 30 consecutive or 60 nonconsecutive day requirement.

   b.  The initial award of the GWOTEM was limited to Soldiers who deployed abroad in Operations Enduring Freedom (OEF) and Iraqi Freedom (OIF) in the following areas of eligibility (AOE):  Afghanistan, Bahrain, Bulgaria (Bourgas), Crete, Cyprus, Diego Garcia, Djibouti, Egypt, Eritrea, Ethiopia, Iran, Iraq, Israel, Jordan, Kazakhstan, Kenya, Kuwait, Kyrgyzstan, Lebanon, Oman, Pakistan, Philippines, Qatar, Romania (Constanta), Saudi Arabia, Somalia, Syria, Tajikistan, Turkey (east of 35 east degrees east latitude), Turkmenistan, United Arab Emirates, Uzbekistan, Yemen, that portion of the Arabian Sea north of 10 degrees north latitude and west of 68 degrees longitude, Bab El Mandeb, Gulf of Aden, Gulf of Aqaba, Gulf of Oman, Gulf of Suez, that portion of the Mediterranean Sea east of 28 degrees east longitude, Persian Gulf, Red Sea, Strait of Hormuz, and Suez Canal.

15.  Army Regulation 600-8-22 states that individuals authorized the ACM must have served in direct support of OEF.  The area of eligibility encompasses all 
land area of the country of Afghanistan and all air spaces above the land.  The ACM period of eligibility is on or after 24 October 2001 to a future date to be determined by the Secretary of Defense or the cessation of Operation Enduring 
Freedom.  A bronze service star is authorized for the following campaigns:  Liberation of Afghanistan (11 September 2001 - 30 November 2001), Consolidation I (1 December 2001 - 30 September 2006), and Consolidation II     (1 October 2006 - date to be determined).
16.  Service members qualified for the GWOTEM by reasons of service between 24 October 2001 and 28 February 2005, in an area for which the ACM was subsequently authorized, will remain qualified for that medal.  Upon application, any such service member may be awarded the ACM in lieu of the GWOTEM for such service.  No service member will be entitled to both medals for the same act, achievement, or period of service.

17.  Army Regulation 600-8-22 states that individuals authorized the ICM must have served in direct support of 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.  A bronze service star is authorized for the following campaigns:  Liberation of Iraq (19 Mar 2003 - 1 May 2003), Transition of Iraq (2 May 2003 - 28 Jun 2004), Iraq Governance (29 Jun 2004 - 15 Dec 2005), and National Resolution (16 Dec 2005 - Date to be determined).
18.  Service members qualified for the GWOTEM by reasons of service between 19 March 2003 and 28 February 2005, in an area for which the ICM was subsequently authorized, will remain qualified for that medal.  Upon application, any such service member may be awarded the ICM in lieu of the GWOTEM for such service.  No service member will be entitled to both medals for the same act, achievement, or period of service.
DISCUSSION AND CONCLUSIONS:

1.  The applicant served in OEF in Afghanistan from 11 July 2002 to 18 January 2003 and in OIF in Iraq from 15 March 2004 to 17 February 2005.  It appears that he was awarded the GWOTEM for his service in support of OIF since the GWOTEM is reflected on his DD Form 214 for the period ending 4 May 2005 and not on his DD Form 214 for the period ending 1 October 2003 which includes his period of service in support of OEF.

3.  To obtain a decision from the applicant pertaining to the GWOTEM versus the ACM or the ICM, a staff of the Board attempted to contact the applicant in regards to his having to choose between the GWOTEM and either the ACM or ICM because only one award for the same period of service is authorized.  To date, no response has been received from the applicant by the staff of the Board.  Accordingly, no action will be taken in that regard.  However, the applicant is not precluded from requesting reconsideration of this issue at a later date.


4.  The evidence of record also shows that the applicant was subsequently awarded the AGCM (1st award) and the CAB for his service in Iraq on
10 November 2004.  Accordingly, these awards should be added to his DD Form 214 for the period ending 4 May 2005 at this time.

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 adding to item 13 of his DD Form 214 for the period ending 4 May 2005 the Army Good conduct Medal (1st award) 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 entitlement to the Afghanistan Campaign Medal or the Iraq Campaign Medal.

3.  The Board wants the applicant and all others to know that the sacrifices he made in service to the United States during the Global War on Terrorism are deeply appreciated.  The applicant and all Americans should be justifiably proud of his service in arms.



      _________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)                                         AR20090011495



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