IN THE CASE OF:	  

		BOARD DATE:	  23 December 2010

		DOCKET NUMBER:  AR20100014011 


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 the:

* Army Commendation Medal
* Army Achievement Medal (1st Oak Leaf Cluster)

2.  The applicant states the above medals are omitted from his DD Form 214. 

3.  The applicant provides his DD Form 214, DA Form 638 (Recommendation for Award) and certificate for award of the Army Commendation Medal, and certificates awarding him two awards of the Army Achievement Medal

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 records show he enlisted in the Regular Army for a period of 3 years on 3 October 2002.  He completed basic combat and advanced individual training and was awarded military occupational specialty 63M (Bradley Fighting Vehicle (BFV) System Maintainer).  He served in Korea from 1 June 2003 to 31 May 2004 and Iraq from 23 August 2004 to 12 June 2005.

3.  His records show he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice on 30 August 2005.  His punishment included a forfeiture of pay for 2 months.  

4.  His Enlisted Record Brief, dated 19 September 2005, shows he had two flags (Suspension of Favorable Personnel Actions) imposed against him: AA (Adverse Action), effective 3 August 2005 and BA (Elimination Action), effective 18 September 2005.

5.  On 20 September 2005, discharge action was initiated against him under the provisions of chapter 14 of Army Regulation 635-200 (Personnel Separations) by reason of misconduct.  The discharge action was ultimately approved by the separation authority.

6.  He was discharged on 30 September 2005.  Item 13 (Awards, Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) shows the:

* National Defense Service Medal
* Korea Defense Service Medal
* Army Service Ribbon
* Overseas Service Ribbon
* Global War on Terrorism Service Medal
* Iraq Campaign Medal

7.  Permanent Orders Number 118-215, issued by Headquarters, 2nd Brigade, 10th Mountain Division, Fort Drum, NY, awarded him the Army Commendation Medal for service from 17 June 2004 to 30 June 2005.  

8.  Permanent Orders Number 330-06, issued by Headquarters, 4th Squadron, 7th Cavalry, Korea, on 26 November 2003, awarded him the Army Achievement Medal for service from 28 September to 26 October 2003.

9.  He provided a certificate, that shows Permanent Orders Number 210-010, issued by Headquarters, 1st Battalion, 41st Infantry, Fort Riley, KS, awarded him the Army Achievement Medal for service from 10 July to 30 September 2005. 

10.  Army Regulation 600-8-2 (Suspension of Favorable Personnel Actions (Flag)) prescribes policies, operating tasks, and steps governing the suspension of favorable personnel actions as a function.  The regulation requires a flag to be initiated in the event of adverse action (e.g. NJP).  Paragraph 1-14 states a flag properly imposed in accordance with this regulation prohibits various personnel actions, among them awards and decorations.

11.  A review of his records indicates his entitlement to additional awards which are not listed on his DD Form 214.

12.  Army Regulation 600-8-22 (Military Awards) states the Iraq Campaign Medal is awarded to members who have served in direct support of Operation Iraqi Freedom (OIF).  The area of eligibility encompasses all the land area of the country of Iraq, 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.  Approved campaigns are:

* Liberation of Iraq (19 March 2003-1 May 2003)
* Transition of Iraq (2 May 2003-28 June 2004)
* Iraqi Governance (29 June 2004-15 December 2005)
* National Resolution (16 December 2005-9 January 2007)
* Iraqi Surge (10 January 2007-31 December 2008)
* Iraqi Sovereignty (1 January 2009-date to be determined)

13.  Army Regulation 600-8-22 provides that an Oak Leaf Cluster is awarded to denote the second and succeeding awards of the Army Achievement Medal.

14.  Army Regulation 600-8-22 states a medal will not be awarded or presented to any individual whose entire service subsequent to the time of the distinguished act, achievement, or service has not been honorable.  Individuals on whom favorable personnel actions have been suspended should neither be recommended for or receive awards during the period of the suspension.

DISCUSSION AND CONCLUSIONS:

1.  Permanent orders awarded him the Army Commendation Medal and the Army Achievement Medal, neither of which are shown on his DD Form 214; therefore, he is entitled to correction of his DD Form 214 to show these medals.

2.  The evidence of record shows the applicant participated in two campaigns (Transition of Iraq and Iraqi Governance) during his service in Iraq.  Therefore, he is entitled to award of two bronze service stars to be worn with his already-awarded Iraq Campaign Medal and correction of his DD Form 214 to show these awards.

3.  With respect to his second award of the Army Achievement Medal, it appears this award was issued in error.  The evidence of record shows he accepted NJP in August 2005 and was pending elimination action in September 2005 and he was flagged for those actions.  Since a flag prohibits awards and decorations, it is reasonable to presume that the Army Achievement Medal for meritorious service from 10 July 2004 to 30 September 2005 was issued in error.  

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 the Army Commendation Medal, Army Achievement Medal, and two bronze service stars to be worn on his already-awarded Iraq Campaign Medal.

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 a second award of the Army Achievement 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)                                         AR20100014011



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ABCMR Record of Proceedings (cont)                                         AR20100014011



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