IN THE CASE OF:	  

		BOARD DATE:	  21 September 2010

		DOCKET NUMBER:  AR20100011562 


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, correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his foreign service in Iraq and any awards and decorations to which he is entitled for participating in Operation Iraqi Freedom (OIF) to include, but not limited to:  the Army Commendation Medal (ARCOM), Iraq Expeditionary Medal [correctly referred to as the Global War on Terrorism Expeditionary Medal (GWOTEM)], and the Iraq Campaign Medal (ICM).

2.  He states that although he deployed to Iraq for the approximate period of 28 March 2003 through 14 December 2003, his foreign service is not shown on his DD Form 214.  He attributes this oversight to the fact that he did not deploy with his unit.  He also contends he should have received at least the Iraq Campaign Medal and Army Commendation Medal, in addition to any other awards or decorations to which he is entitled.  He concludes he was unaware of this error until he attempted to use the veterans' preference employment benefit.

3.  He provides copies of his:

* deployment orders
* redeployment authorization
* deployment certification
* release from active duty orders
* DD Form 214


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.  His record shows he enlisted in the Regular Army on 29 March 2001 and held military occupational specialty 21B (Combat Engineer).  He was released from active duty (REFRAD) on 28 March 2004 and transferred to U.S. Army Control Group (Reinforcement) after completing 3 years of creditable service.
At the time of his REFRAD, he held the rank/pay grade of specialist/E-4.

3.  Headquarters, 4th Infantry Division (Mechanized), Fort Hood, TX, Orders 
085-04, dated 26 March 2003, and the corresponding manifest show he was deployed to the Central Command (CENTCOM) area of responsibility (AOR) on or about 27 March 2003 for a period of 179 days.

4.  His redeployment documentation shows he was authorized to redeploy early due to the fact his Expiration Term of Service (ETS) date was 20 March 2004.

5.  A Headquarters and Headquarters Company, 299th Engineer Battalion, 4th Infantry Division (Mechanized), Fort Hood, TX, memorandum, dated 5 February 2004, shows the battalion adjutant certified he was deployed to the CENTCOM AOR in support of OIF on 28 March 2003 and redeployed from Tikrit, Iraq on 14 December 2003, for a total of 8 months and 15 days [actually 17 days] in theater.

6.  His DD Form 214 shows the following entries:

	a.  Item 12f (Foreign Service) shows he served overseas 0 years, 0 months, and 0 days.

	b.  Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) shows he was awarded or authorized to wear the Army Lapel Button, the National Defense Service Medal, and the Army Service Ribbon.

	c.  Item 18 (Remarks) of this form does not show the specific dates of his deployment or to which country he deployed.

7.  His available military personnel record is devoid of any evidence and he has not provided any evidence showing he was either recommended for or awarded the ARCOM.

8.  A query of his Master Military Pay Account (MMPA) maintained by the Defense Finance and Accounting Service (DFAS) revealed he received pay and tax exclusion entitlements associated with deployment to the hostile fire area of Kuwait/Iraq during the period 29 March 2003 through 17 December 2003.

9.  A review of the applicant's service record shows no derogatory information in the form of lost time, nonjudicial punishment, or suspension of favorable personnel actions that would disqualify him for the first award of the Army Good Conduct Medal during the period the period 29 March 2001 through 28 March 2004.  There are no also entries in his record to indicate that his commanders denied him award of the Army Good Conduct Medal during this period of service.

10.  Army Regulation 600-8-22 (Military Awards) provides that the Global War on Terrorism Service Medal (GWOTSM) is authorized for award to members of the Armed Forces of the United States who have participated in Global War on Terrorism operations outside of the designated areas of eligibility on or after 11 September 2001 to a future date to be determined.  All Soldiers on active duty on or after 11 September 2001 to a date to be determined, having served 30 consecutive days or 60 nonconsecutive days, are authorized the GWOTSM.

11.  Army Regulation 600-8-22 states 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 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 in operations approved by the Secretary of Defense.  

12.  Army Regulation 600-8-22 provides that award of the ICM is authorized for service in direct support of Operation Iraqi Freedom on or after 19 March 2003 to a future date to be determined by the Secretary of Defense or the cessation of the operation.  The area of eligibility encompasses all land area of the country of Iraq and the contiguous sea area out to 12 nautical miles and the air space above these areas.  To qualify for award of this campaign medal, service members must have been assigned or attached to or mobilized with units operating in these areas of eligibility for 30 consecutive days or for 60 nonconsecutive days or meet one of the following criteria:

	a.  be engaged in combat during an armed engagement, regardless of the time in the area of eligibility;

	b.  be medically evacuated from the area of eligibility for wounds or injuries resulting from participation in an operation or official duties; and

	c.  participate as a regularly assigned air crewmember flying sorties into, out of, within, or over the area of eligibility in direct support of the military operations (each day of operations counts as 1 day of eligibility).

13.  Department of the Army Military Personnel Message 10-078, dated 17 March 2010, provided guidance on the criteria, applicability, and standards for awarding and wearing of bronze service stars on the Afghanistan Campaign Medal and the ICM.  This message shows, in pertinent part, that during the applicant's tour of duty in Iraq he completed a qualifying period of service during two campaigns:  Liberation of Iraq (19 March 2003 through 1 May 2003) and Transition of Iraq (2 May 2003 through 28 June 2004).

14.  Army Regulation 600-8-22 provides that under no condition will personnel or units receive the ICM, the GWOTEM, the GWOTSM, the Afghanistan Campaign Medal, or the Armed Forces Expeditionary Medal for the same action, time period, or service.  On 20 September 2010, an ABCMR analyst contacted him to determine whether he preferred the ICM or the GWOTEM and he indicated he desired the ICM in lieu of the GWOTEM.

15.  Army Regulation 600-8-22 states the Army Good Conduct Medal 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 Army Good Conduct Medal, disqualification must be justified.  

16.  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.  In 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.  It is important that information entered on the form should be complete and accurate.  Chapter 2 of Army Regulation 635-5 contains guidance on the preparation of the DD Form 214.  It states, in pertinent part, that:

	a.  all decorations, badges, citations, and campaign ribbons awarded and authorized for all periods of service should be entered in item 13 of the form;

	b.  the total amount of foreign service completed during their continuous period of active service will be entered as "YYYY MM DD" in item 12f of the form; and

	c.  for item 18, for an active duty Soldier deployed with his or her unit during their continuous period of active service, the statement "SERVICE IN (NAME OF COUNTRY DEPLOYED) FROM (inclusive dates for example, YYYYMMDD-YYYYMMDD)" will be entered.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his DD Form 214 should be corrected to show his foreign service in Iraq and any awards and decorations to which he is entitled for participating in OIF to include, but not limited to:  the ARCOM, the GWOTEM, and the ICM.

2.  His battalion adjutant certified he deployed to Iraq in support of OIF for the period 28 March 2003 through 14 December 2003.  A query of his MMPA maintained by DFAS revealed he received pay and tax exclusion entitlements associated with deployment to the hostile fire area of Kuwait/Iraq during this period.  Therefore, he is entitled to correction of Item 12f of his DD Form 214 to show a total of 8 months and 17 days of foreign service.

3.  In view of the foregoing, Item 18 of his DD Form 214 should be amended to show the period of his deployment and the country to which he deployed.

4.  Evidence shows he served a qualifying period of service for award of the GWOTSM.  Therefore, the applicant is entitled to correction of his record to show this service medal.

5.  Evidence shows he served a qualifying period of service in Iraq for award of the ICM and that he participated in two campaigns.  Therefore, he is entitled to correction of his records to show the ICM with two bronze service stars.  Evidence also shows this same period of time qualified him for award of the GWOTEM.  However, Army Regulation 600-8-22 provides that under no condition will personnel or units receive the ICM, the GWOTEM, the GWOTSM, the Afghanistan Campaign Medal, or the Armed Forces Expeditionary Medal for the same action, time period, or service.  When contacted by an ABCMR analyst to determine whether he preferred the ICM or the GWOTEM, he indicated he desired the ICM in lieu of the GWOTEM.

6.  The evidence of record confirms the applicant honorably served on active duty during the 3-year period 29 March 2001 through 28 March 2004.  His record is void of any evidence that shows he had lost time or that he received nonjudicial punishment or court-martial action during that period of service.  There is no evidence of a suspension of favorable personnel actions or that his commander denied him award of the Army Good Conduct Medal that period of service.  Lacking any derogatory information on file that would have disqualified him, it would be appropriate to award the applicant the Army Good Conduct Medal for the period 29 March 2001 through 28 March 2004 and to correct his records to show this award.

7.  His available military personnel record is devoid of any evidence and he has not provided any evidence showing he was either recommended for or awarded the ARCOM; therefore, he is not entitled to correction of his record to show award of the ARCOM.

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 Army Good Conduct Medal (1st Award) for the period 29 March 2001 through 28 March 2004;

	b.  deleting the current entry in item 12f of his DD Form 214 and adding the entry "0000  08  17";

	c.  adding the Army Good Conduct Medal (1st Award), the Iraq Campaign Medal with two bronze service stars, and the Global War on Terrorism Service Medal to item 13 of his DD Form 214; and

	d.  adding the entry, "SERVICE IN IRAQ FROM 20030328-20031214," to item 18 of his DD Form 214.

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 Army Commendation 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)                                         AR20100011562





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ABCMR Record of Proceedings (cont)                                         AR20100011562



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