IN THE CASE OF:
BOARD DATE: 1 March 2011
DOCKET NUMBER: AR20100021521
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 his service in Iraq from 14 January 2003 to 3 August 2003.
2. He states he:
* served in a designated imminent danger pay area
* was medically evacuated from theater due to injuries suffered while on a mission
3. He provides:
* DD Form 214
* DA Form 2173 (Statement of Medical Examination and Duty Status)
* DFAS Form 702 (Defense Finance and Accounting Service (DFAS) Military Leave and Earnings Statement)
* Letter from the Deputy Commander for Clinical Services, Walter Reed Army Medical Center, dated 23 February 2004, addressed to a Congressman
* Orders D078-04, dated 19 March 2009
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. After having had prior active and inactive service, the applicant enlisted in the Army National Guard on 1 November 2001. His DD Form 214 shows he was ordered to active duty on 16 January 2003.
3. His DA Form 2-1 (Personnel Qualification Record) shows he was ordered to active duty on 16 January 2003 in support of Eagle/Operation Enduring Freedom.
4. His Leave and Earnings Statement, for his check dated 14 March 2003, shows he received $300.00 hostile fire pay.
5. His DA Form 2173, signed by a attending physician on 15 January 2004, indicates he spent 6 months in Kuwait and Iraq for combat duty from February through August 2003.
6. Orders 010-042, dated 16 January 2004, show his period of active duty was changed from period of active duty not to exceed 365 days to not to exceed 462 days (16 January 2003 to 21 April 2004).
7. He was released from active duty on 9 September 2004 under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(2) by reason of temporary physical disability. On the following day, he was placed on the Temporary Disability Retired List.
8. Item 12f (Foreign Service) and item 18 (Remarks) on his DD Form 214 do not show any foreign service.
9. He was removed from the Temporary Disability Retired List on 19 March 2009 and was permanently retired on the following day.
10. A query of his Master Military Pay Account maintained by DFAS shows he reported for active duty on 14 January 2003, served in Kuwait from 20 February 2003 through 30 September 2003, and was released from active duty on 12 November 2004.
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 establishes standardized policy for the preparation of the DD Form 214. It states that 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 in item 18 (Remarks).
DISCUSSION AND CONCLUSIONS:
1. The applicant contends he served in an imminent danger pay area in Iraq from 14 January 2003 to 3 August 2003. There is sufficient evidence on which to grant partial relief in this case.
2. His DFAS military pay records show he reported for active duty on 14 January 2003 and served in Kuwait from 20 February 2003 through 30 September 2003.
3. His DA Form 2173 shows he spent approximately 6 months in Kuwait and Iraq for combat duty from February through August 2003.
4. His military pay records combined with his DA Form 2173 are accepted as sufficient evidence as a basis to amend his DD Form 214 to show he served in Kuwait and Iraq from 20 February 2003 through 30 September 2003. In addition, it would be appropriate to amend item 12f to show 7 months and 10 days of foreign service.
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. amending item 12f to show the entry 0000 07 10; and
b. amending item 18 to show the entry "SERVICE IN KUWAIT/IRAQ FROM 20030220 TO 20030930.
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 amending his DD Form 214 to show he served in Iraq from 14 January 2003 to 3 August 2003.
_______ _ 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) AR20100021521
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ABCMR Record of Proceedings (cont) AR20100021521
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