IN THE CASE OF:	 

		BOARD DATE:	  18 May 2010

		DOCKET NUMBER:  AR20090018741 


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 his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to show his wartime service and that he is now permanently retired.

2.  The applicant states his wartime service is not reflected on his DD Form 214 and he was recently permanently retired.  He states these issues are important to him.

3.  The applicant provides a copy of a Memorandum for Record, dated 
10 November 2003, confirming he deployed to Afghanistan between 14 October and 20 December 2003, and a copy of his 2009 Physical Evaluation Board Proceedings which removed him from the Temporary Disability Retired List (TDRL) and permanently retired him by reason of physical disability.

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 enlisted as a Regular Army Soldier in December 1995.  By September 2001 he was assigned to the 172nd Support Battalion in Alaska.

3.  The applicant deployed to Afghanistan with his unit in October 2003 and redeployed in December 2003.  The statement provided in support of his request to confirm his combat service was issued on 10 November 2003 by Headquarters, Task Force 1-501 Parachute Infantry Regiment (PIR) located at Forward Operating Base Salerno, in Afghanistan.  This statement indicates the applicant arrived in Kandahar, Afghanistan on 14 October 2003 and departed on 20 December 2003.

4.  Information obtained from the Defense Finance and Accounting Service (DFAS) indicates the applicant was in the Combat Zone Tax Exclusion (CZTE) area from 17 October through 15 December 2003 and he received hostile fire/imminent danger pay (HF/IDP) during that same period.

5.  The applicant returned to Alaska following his deployment to Afghanistan and on 24 December 2004 he was retired and his name was placed on the TDRL the following day based on multiple medical issues which had not stabilized sufficiently to render a permanent rating decision.

6.  A DD Form 214 was issued at the time the applicant was retired from active duty on 24 December 2004.  The DD Form 214 does not show the applicant’s deployment status in item 18 (Remarks).

7.  On 2 June 2009, the applicant’s name was removed from the TDRL and he was permanently retired with a disability rating of 30 percent.

8.  Army Regulation 635-5 (Separation Documents) states that a Soldier deployed to a foreign country will have the following statement entered in item 18 of his or her DD Form 214:  "SERVICE IN (NAME OF COUNTRY DEPLOYED) FROM (inclusive dates for example, YYYMMDD-YYYMMDD)."

9.  Army Regulation 635-5 also states a DD Form 214 will be prepared upon termination of active duty by reason of administrative separation (including separation by reason of retirement or expiration term of service (ETS), physical disability separation, or punitive discharge under the Uniform Code of Military Justice.  The instructions for Item 12a state, in pertinent part, to enter the beginning date of the continuous period of active duty for issuance of this
DD Form 214, for which a DD Form 214 was not previously issued.  Item 12b states, in pertinent part, to enter the Soldier's REFRAD, separation, or discharge date.

DISCUSSION AND CONCLUSIONS:

1.  While the evidence certainly confirms the applicant was deployed to Afghanistan, the exact dates of his deployment are not entirely clear.  However, given the dates DFAS show he was in the CZTE it would be appropriate and in the interest of justice to correct item 18 of his December 2004 DD Form 214 to reflect "SERVICE IN AFGHANISTAN FROM 20031017-20031215."

2.  By regulation, a DD Form 214 is a summary of a Soldier's most recent period of continuous active duty, and the form is prepared on an Active Army Soldier upon termination of active duty by reason of physical disability separation.  In this case, the applicant was properly issued a DD Form 214 on 24 December 2004, which is the date he was separated from active duty for placement on the TDRL. 

3.  A DD Form 214 documents a member's active duty service.  There are no regulatory provisions that provide for correcting a DD Form 214 based on actions that take place subsequent to a member's separation from active duty.  As a result, given the applicant's time on the TDRL is not active duty service, it would not be appropriate to add information pertaining to his permanent disability retirement on his 24 December 2004 DD Form 214 which is properly documented in retirement orders.  

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 the statement "SERVICE IN AFGHANISTAN FROM 20031017-20031215” to item 18 of his DD Form 214 issued in 2004.

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 correction of his 2004 DD Form 214 to show he was permanently retired by reason of physical disability in 2009.




      _______ _  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)                                         AR20090018741



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ABCMR Record of Proceedings (cont)                                         AR20090018741



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