IN THE CASE OF:	  

		BOARD DATE:	  12 May 2011

		DOCKET NUMBER:  AR20100024742 


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 reflect award of the Iraq Campaign Medal (ICM) with two bronze service stars, Combat Action Badge (CAB), and Humanitarian Service Medal (HSM).

2.  He states he is willing to surrender the Global War on Terrorism Expeditionary Medal (GWOTEM) in order to be awarded the ICM.  His dates of service in Iraq cover two periods that would qualify him for two bronze service stars.

3.  He contends he is eligible for the CAB based on being actively engaged by the enemy while the convoy he was riding in was attacked by a rocket-propelled grenade.  He states another Soldier who was riding in the same convoy received the Purple Heart for his injuries.

4.  He states that based on Achievement Number 1, as written in the DA Form 638 (Recommendation for Award) for justification for award of an Army Commendation Medal (ARCOM) which states he conducted extensive humanitarian missions while assigned to the 360th Transportation Company in Iraq, he should be entitled to award of the HSM.

5.  He contends that the CAB and ICM were not authorized at the time of his separation.  The only error he truly believes exists is that he was not awarded the HSM.



6.  He provides copies of:

* DA Form 638
* DD Form 214
* letter from the Department of Veterans Affairs (VA) Colorado Springs Veterans Center

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 records show he enlisted in the Delayed Entry Program (DEP) of the U.S. Army Reserve (USAR) on 24 October 1998 for a period of 8 years.  He was released from the DEP effective 22 July 1999 and enlisted in the Regular Army on 23 July 1999 for 3 years.

3.  His records contain a DD Form 214 for the period ending 22 July 2002 that shows he was honorably released from active duty and transferred to the USAR Control Group (Reinforcement) for completion of his Reserve service obligation.

4.  Orders M-025-0095 issued by the 96th Regional Support Command on 25 January 2003 show he was ordered to active duty for 365 days in support of Operation Enduring Freedom (OEF) effective 27 January 2003.

5.  He provided a DA Form 638 that shows he was recommended for award of the ARCOM for achievement during the period 1 March to 15 October 2003 while assigned to the 360th Transportation Company, Camp Arifjan, Kuwait, as a heavy wheeled vehicle operator.  He highlighted a sentence in Achievement Number 1 which states, "Specialist S____'s missions included both military and humanitarian missions."

6.  The DA Form 638 makes no mention of him being actively engaged by the enemy and his record is void of any evidence showing his involvement or contact with an enemy force.  Furthermore, there is no evidence in the available record to show he requested award of the CAB through the Commander, U.S. Army Human Resources Command.

7.  His record is also void of evidence and he has not provided any to show he served in a designated operation which would qualify him for award of the HSM.

8.  His records contain U.S. Army Human Resources Command 
Orders A-07-407304 issued on 21 July 2004 which directed him to report to U.S. Army Garrison, Fort Carson, CO, on 20 July 2004 for the purpose of voluntarily participating in the Reserve Component Medical Holdover Medical Retention Program for a period of 179 days.

9.  He provided his DD Form 214 for the period ending 7 October 2004.  This document shows he was honorably discharged under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations).  He completed 1 year, 8 months, and 11 days of net active service during this period.  Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) shows:

* ARCOM
* Army Achievement Medal (2nd Award)
* Army Good Conduct Medal
* National Defense Service Medal (2nd Award)
* GWOTEM
* Global War on Terrorism Service Medal
* Army Lapel Button
* Army Service Ribbon
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar
* Driver and Mechanic Badge with Driver-W Bar
* overseas service bar
* Armed Forces Reserve Medal with "M" Device

10.  Item 18 (Remarks) of his DD Form 214 for the period ending 7 October 2004 shows he served in Iraq from 26 March to 10 December 2003 for a total of 8 months and 15 days of foreign service.

11.  He provided a letter from the Colorado Springs Veterans Center, dated 26 July 2004, written by an attending readjustment counselor/therapist for the center.  The applicant highlighted a sentence in the letter which states, "His most traumatic experience was a rocket-propelled grenade hitting the fuel truck in front of his truck."

12.  A review of his records indicates he is eligible for additional awards which are not shown in item 13 of his DD Form 214. 

13.  Department of the Army General Orders Number 3, dated 6 November 2007, announced award of the Meritorious Unit Commendation (MUC) to the 360th Transportation Company for exceptionally meritorious conduct in the performance of outstanding service during the period 10 January to 25 September 2003.

14.  Army Regulation 600-8-22 (Military Awards) prescribes the regulatory guidelines and criteria for military awards.

	a.  The ICM is awarded to members who 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 ICM 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.  A bronze service star is authorized for wear with this medal for participation in each credited campaign.  Approved campaigns are:

* Liberation of Iraq (19 March-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)

	b.  Service members qualified for award of the GWOTEM by reason of service between 19 March 2003 and 28 February 2005 in an area for which the ICM was subsequently authorized will remain qualified for that medal.  Upon application, any such service member may be awarded the ICM in lieu of the GWOTEM for such service.  No service member will be entitled to both medals for the same act, achievement, or period of service.

	c.  The HSM is awarded to members who, after 1 April 1975, distinguished themselves by meritorious direct participation in a Department of Defense approved significant military act or operation of a humanitarian nature.  A service member must be on active duty at the time of direct participation, must have directly participated in the humanitarian act or operation within the designated geographical area of operation and within specified time limits, and must provide evidence that substantiates direct participation.  Table C-1 of Army Regulation 600-8-22 shows a list of qualifying named operations and periods of service for award of the HSM.  OEF and OIF do not appear on this list.

	d.  The requirements for award of the CAB are branch and MOS immaterial.  Assignment to a combat arms unit or a unit organized to conduct close or offensive combat operations or performing offensive combat operations is not required to qualify for the CAB.  However, it is not intended to award the CAB to all Soldiers who serve in a combat zone or imminent danger area.  The Soldier must be performing assigned duties in an area where hostile fire pay or imminent danger pay is authorized.  The Soldier must be personally present and actively engaging or being engaged by the enemy and performing satisfactorily in accordance with the prescribed rules of engagement.

15.  The ABCMR operates under the procedures set forth in Army Regulation 
15-185 (Army Board for Correction of Military Records) which provides that the ABCMR will not consider any application until the applicant has first exhausted all other administrative remedies to correct the alleged error or injustice.

	a.  Requests for retroactive award of the CAB must be forwarded to the Commander, U.S. Army Human Resources Command, ATTN:  AHRC-PDP-A, 1600 Spearhead Division Avenue, Fort Knox, KY  40122.  This request must be on a DA Form 4187 (Personnel Action) if the applicant is currently on active duty or in an active status.  If the applicant is not on active duty or in an active status, he or she may request this award by letter.

	b.  All requests must contain:

* assignment, attachment, or operational control orders
* a copy of the applicant's Enlisted Record Brief or Personnel Qualification Record
* a copy of the chain of command's endorsement
* a 1-page narrative description of the qualifying incident
* a certified copy of the applicant's DD Form 214
* other supporting documentation

DISCUSSION AND CONCLUSIONS:

1.  His request for award of the ICM with two bronze service stars, HSM, and CAB was carefully considered.

2.  The evidence of record shows he was previously awarded the GWOTEM for his service in Iraq from 26 March to 10 December 2003.  Army Regulation 
600-8-22 states that upon application a service member may be awarded the ICM in lieu of the GWOTEM.  His period of service in Iraq is consistent with the Liberation of Iraq and the Transition of Iraq campaigns.  Therefore, he is authorized to wear two bronze service stars on the ICM.

3.  General orders awarded his unit the MUC during his period of service in Iraq.  Therefore, he is entitled to have this unit award added to item 13 of his DD Form 214 for the period ending 7 October 2004.

4.  His record is void of evidence and he has not provided sufficient evidence to show he served or participated in a named operation for award of the HSM.  Therefore, lacking evidence to the contrary, he is not entitled to award of the HSM.

5.  There is no evidence in the available record and he has not provided sufficient evidence to show he exhausted his administrative remedy with regard to award of the CAB.  Therefore, in the absence of evidence to the contrary, no further action can be taken at this time.  This does not mean this portion of his application has been denied by the ABCMR or that he may not file again.  Should his case not be satisfactorily resolved and he still feels an error or injustice exists, he may submit another application with evidence of the U.S. Army Human Resources Command's denial of his request.

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 amending item 13 of his DD Form 214 for the period ending 7 October 2004 as follows:

	a.  deleting the GWOTEM and

	b.  adding the ICM with two bronze service stars and MUC.

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 award of the HSM.



      ____________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)                                         AR20100024742



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ABCMR Record of Proceedings (cont)                                         AR20100024742



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