IN THE CASE OF:
BOARD DATE: 17 February 2011
DOCKET NUMBER: AR20100020572
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) for the period ending 28 November 2008 to reflect his foreign service in Iraq during the period February to October 2004 and to show the Combat Action Badge.
2. The applicant states his service in Iraq is missing from his complete record. He adds that upon returning from his second combat tour in Iraq he noticed his service performed during the period February to October 2004 was not added to his DD Form 214.
3. The applicant provides a DA Form 67-9 (Officer Evaluation Report) and Permanent Orders C180-16.
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 applicants 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 applicants 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 was appointed as a Reserve Commissioned Officer on 20 December 1997.
3. In the processing of this case a member of the Board's staff contacted the Defense Finance and Accounting Service (DFAS). DFAS established that the applicant received hostile fire pay/imminent danger pay (HFP/IDP) for Kuwait for the period 2 February to 5 October 2004.
4. A review of the applicant's records did not reveal a DD Form 214 which covered 2004.
5. The applicant provided a copy of a DA Form 67-9 covering the period 12 January to 15 November 2004. This form shows his duty location as Camp Victory, Iraq for the rating period. The reason for submission shown on the form was release from active duty.
6. The applicant's DD Form 214 in question does not show the Combat Action Badge.
7. Item 12f (Foreign Service) of his DD Form 214 in question shows 10 months and 4 days of foreign service.
8. His records contain Headquarters, U.S. Army Civil Affairs and Psychological Operations Command (Airborne) Permanent Orders C180-16, dated 29 June 2006, awarding him the Combat Action Badge for action on 15 January 2004.
9. 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 that for item 12f, enter the total amount of foreign service completed during the period covered in item 12c (Net Active Service This Period).
10. Army Regulation 635-5 (Separation Documents), provides detailed instructions for completing separation documents, including the DD Form 214. It provides that the total amount of foreign service completed during the period covered by the DD Form 214 is to be taken from the Enlisted/Officer Record Brief and recorded in item 12f. Further, this regulation provides that an active duty Soldier deployed with his or her unit during their continuous period of active duty will have item 18 annotated with "SERVICE IN (NAME OF COUNTRY DEPLOYED) FROM (inclusive dates for example, YYYYMMDD-YYYYMMDD)."
DISCUSSION AND CONCLUSIONS:
1. Evidence indicates the applicant served in Iraq in 2004. However, his records do not contain and he did not provide a DD Form 214 covering that period of active service. Regulatory policy prescribes that entries in item 12f will only be the total amount of foreign service completed during the period covered in item 12c. As such, there is no available record to correct or a basis for correcting his DD Form 214 in question by adding his previous service in Iraq.
2. Permanent orders awarded him the Combat Action Badge which is not shown on his DD Form 214 in question. Therefore, he is entitled to correction of this DD Form 214 to show this award.
3. In view of the foregoing, he is entitled to have his records corrected as shown below.
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 the DD Form 214 in question of the individual concerned be corrected by adding 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 showing his Iraq service for the period February to October 2004.
_________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) AR20100020572
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ABCMR Record of Proceedings (cont) AR20100020572
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