IN THE CASE OF:	 

		BOARD DATE:	12 January 2011

		DOCKET NUMBER:  AR20100017082


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) as follows:

	a.  item 12f (Foreign Service) to show the appropriate foreign service;

	b.  item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) to show the Combat Action Badge (CAB), four awards of the Army Achievement Medal (AAM), and four awards of the Army Commendation Medal (ARCOM); and

	c.  item 18 (Remarks) to show two combat deployments.

2.  The applicant also requests correction of his Enlisted Record Brief (ERB) to correct his awards and decorations, level of highest civilian education completed, and date of rank.

3.  The applicant states, in effect, his record is in error because it is incomplete.  He is trying to return to active duty and wants to ensure his record is complete.

4.  The applicant provides:

* DD Form 214
* ERB
* Permanent Orders 131-017, Headquarters, Multi-National Division (Baghdad), Camp Liberty, Iraq, dated 11 May 2006
* Orders 313-09, Headquarters, 4th Infantry Division (Mechanized), Fort Hood, TX, dated 9 November 2005
* DA Form 638 (Recommendation for Award) (front side only)
* high school diploma
* DA Form 4187 (Personnel Action) for advancement to specialist

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 in the Regular Army on 6 March 2003.  Records show he completed one-station unit training and was awarded military occupational specialty 19D (Cavalry Scout).  The highest rank/grade he attained while on active duty was specialist/E-4.

3.  He was honorably released from active duty on 9 March 2007 and he was transferred to the U.S. Army Reserve Control Group to complete his remaining service obligation.  His DD Form 214 shows he completed 4 years and 4 days of active service during this period.

	a.  Item 12f shows he completed 7 months and 1 day of foreign service.

	b.  Item 13 shows the:

* Army Good Conduct Medal
* National Defense Service Medal
* Global War on Terrorism Service Medal
* Iraq Campaign Medal
* Army Service Ribbon
* Overseas Service Ribbon 
* Combat Infantryman Badge

	c.  Item 18 shows "SERVICE IN IRAQ 20030916-20040416."

4.  The Defense Finance and Accounting Service records show he received hostile fire/imminent danger pay and combat zone tax exclusion for Kuwait from 16 September 2003 to 18 March 2004 and from 12 December 2005 to 28 November 2006.

5.  Permanent Orders 131-017, Headquarters, Multi-National Division (Baghdad), dated 11 May 2006, awarded him the Combat Action Badge for active engagement with the enemy on 13 April 2006.

6.  There is no indication in the available records of any previously-approved awards of the AAM or ARCOM.

7.  He provides:

	a.  Orders 313-09, issued by Headquarters, 4th Infantry Division (Mechanized), Fort Hood, TX, dated 9 November 2005, which deploys his unit to the U.S. Central Command area of operations in support of Operation Iraqi Freedom;

	b.  DA Form 638 (front side only) recommending him for the ARCOM (4th Award) (this form also shows he had previously been awarded four awards of the AAM and three awards of the ARCOM);

	c.  high school diploma, American Academy, dated 30 January 2003; and

	d.  DA Form 4187, dated February 2005, showing his advancement from private first class/E-3 to specialist/E-4 effective 1 February 2005.

8.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) prescribes the policies and mandated operating tasks for the Military Personnel Information Management/Records Program of the Military Personnel System.  The ERB is an automated record of personnel management qualifications and provides some duplication, in the form of data, of information recorded in the Soldier's official military personnel file (OMPF).  The ERB is created, maintained, and updated while the Soldier is on active duty.  Upon separation from active duty, the ERB is no longer maintained or updated.

9.  Army Regulation 600-8-22 (Military Awards) states the requirements for award of the Combat Action Badge are branch and MOS immaterial.  However, 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.  


10.  Army Regulation 600-8-22 states there are basically three requirements for award of the Combat Infantryman Badge.  The Soldier must be an infantryman satisfactorily performing infantry duties, he must be assigned to an infantry unit during such time as the unit is engaged in active ground combat, and he must actively participate in such ground combat.

11.  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.  It states:

	a.  Item 12f of the DD Form 214 documents the total amount of foreign service completed during the period of service represented in item 12c (Net Active Service this Period).

	b.  Item 12h (Effective Date of Pay Grade) shows the effective date of promotion to the current pay grade taken from the most recent promotion order (or reduction instrument).

	c.  Item 13 documents the decorations, medals, badges, citations, and campaign ribbons awarded or authorized.  List awards and decorations for all periods of service in the priority sequence specified in Army Regulation 600-8-22 (Military Awards).  Each entry will be verified by the Soldier's records.

	d.  Item 18 documents the remarks that are pertinent to the proper accounting of the separating Soldier's period of service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's record shows he was deployed to Iraq from 16 September 2003 to 16 April 2004 and he was again deployed to Iraq from 12 December 2005 to 28 November 2006.  Therefore, he is entitled to correction of item 12f of his DD Form 214 to show 1 year, 6 months, and 18 days of foreign service.

2.  Because of his service in Iraq, he is entitled to correction of item 18 of his DD Form 214 to show "SERVICE IN IRAQ 20030916-20040416 AND 20051212-20061128."

3.  Orders show he was awarded the CAB for actively engaging or being engaged by the enemy which is not shown on his DD Form 214.  Therefore, he is entitled to correction of his DD Form 214 to show this award.

4.  It is noted that his DD Form 214 shows he was awarded the Combat Infantryman Badge.  As his MOS was 19D, it appears the applicant did not meet the eligibility criteria for award of this badge.  Also, qualifying for award of the Combat Infantryman Badge would have made the applicant ineligible for award of the CAB.  However, he did not ask that it be removed and it is the policy of this Board not to make an applicant worse off.  Therefore, the Combat Infantryman Badge will not be deleted from his DD Form 214.

5.  With respect to correction of his records to show multiple awards of the ARCOM and AAM, the available record is void of any evidence indicating he was previously recommended for or awarded the ARCOM or AAM.  The governing Army regulation states that for personal decorations (which include the ARCOM and AAM), formal recommendation, approval through the chain of command, and announcement of orders are required.  In the absence of orders, there is insufficient evidence to correct his records to show the AAM.

6.  A DA Form 4187, the instrument used to advance him to specialist, shows his date of rank as 1 February 2005.  Therefore, he is entitled to correction of item 12h of his DD Form 214 to show "2005 02 01."

7.  With respect to his ERB, the ERB is an automated record of a Soldier's personnel management qualifications in the form of data.  The ERB is not maintained or updated subsequent to a Soldier's separation from active duty.  Therefore, the applicant is not entitled to correction of his ERB.  However, if the applicant reenters the Active Army, a new ERB will be generated and may capture all the awards and decorations that he was issued.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

____X___  ____X___  ____X___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is 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:

* correcting item 12f of his DD Form 214 to show 1 year, 6 months, and 18 days of foreign service
* correcting item 12h of his DD Form 214 to show "2005 02 01"
* correcting item 13 of his DD Form 214 to add award of the CAB
* correcting item 18 of his DD Form 214 to show "SERVICE IN IRAQ 20030916-20040416 AND 20051212-20061128"

2.  The Board further determined 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 DD Form 214 to show multiple awards of the ARCOM and AAM
* correction of his ERB



      ____________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)                                         AR20100011932



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ABCMR Record of Proceedings (cont)                                         AR20100017082



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