IN THE CASE OF:	  

		BOARD DATE:	 31 May 2011 

		DOCKET NUMBER:  AR20100027378 


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 items 12f (Foreign Service) and 18 (Remarks) of his DD Form 214 (Certificate of Release of Discharge from Active Duty) be corrected.

2.  The applicant states:

	a.  his DD Form 214 does not reflect his second tour completed in Iraq;

	b.  he served an additional 5 months and 17 days in Iraq from 13 December 2005 to 30 May 2006; and

	c.  he was unable to review his DD Form 214 due to his hospitalization and medical treatment.

3.  The applicant provides a copy of:

* DA Form 199 (Physical Evaluation Board (PEB)) Proceedings
* Certificate of Achievement/Iraqi Campaign Medal (ICM) Certificate
* DD Form 214


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 military record shows he enlisted in the Regular Army on 7 June 2001.  He was trained in and awarded military occupational specialty 11B (Infantryman).

3.  A DA Form 199 dated 12 February 2009 shows a PEB that convened at Fort Lewis, Washington, found the applicant unfit for duty and granted him a 100 percent disability rating based on the following two conditions:

   a.  Chronic Philadelphia Chromosome Positive Myelocytic Leukemia - discovered in April 2008 during follow up for abdominal shrapnel wounds.  He continues on chemotherapy with hydroxyurea and Gleevec which he was started in May 2008.  Although white blood count has returned to near normal, he is in the treatment phase of leukemia and remains unable to accomplish most of the requirements of an infantry Soldier.
   
   b.  Intestinal fistula with draining sinus -  sustained following shrapnel wound to the buttocks in Iraq in May 2006 (Purple Heart).  Soldier has undergone multiple abdominal surgical procedures, and at this point the fistula continues to exude fecal material despite a diverting colostomy.  Requires dressing change four to five times a day.
   
4.  On 1 March 2010, the applicant was honorably retired by reason of permanent disability, having completed 8 years, 8 months, and 25 days of active federal service.  His DD Form 214 includes the following entries in the items indicated:

   a.  item 12f  - "0001 02 06"; and
   
   b.  item 18 - "SERVICE IN IRAQ 20030406 - 20040406" and "SERVICE IN CUBA 20010912 - 20011116"

5.  A review of the applicant's Defense Finance and Accounting Service military pay record shows he was entitled to imminent danger pay (IDP)/hostile fire pay (HFP) for his service in during the following periods in the indicated areas:

* 20030405 - 20040319 (Kuwait)
* 20051215 - 20060601 (Kuwait)
* 20060701 - 20060831 (Persian Gulf)
* 20080501 - 20090519 (Kuwait)
* 20090601 - 20100301 (Kuwait)

6.  The applicant provides a certificate of achievement which shows he served in Iraq from 13 December 2005 to 30 May 2006 and he received the ICM for this service.

7.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It also establishes standardized policy for preparing and distributing the DD Form 214.  Chapter 2 contains item-by-item instructions for preparing the DD Form 214.  The instructions for item 12f state to enter the total amount of foreign service completed during the period covered by the DD Form 214 and item 18 specifies for active duty Soldiers deployed with his or her unit, the entry "SERVICE IN (NAME OF COUNTRY DEPLOYED) FROM (inclusive dates for example, YYYYMMDD-YYYYMMDD)" will be included.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends items 12f and 18 of his DD Form 214 should be corrected to reflect his second tour in Iraq.

2.  Item 12f of the applicant's DD Form 214 currently documents the 1 year, 2 months, and 6 days combined foreign service he performed in Cuba from 12 September - 16 November 2001 and Iraq from 6 April 2003 - 6 April 2004 as shown in item 18.  His DFAS pay record confirms he served in Kuwait from 15 December 2005 to 1 June 2006 and a certificate of achievement verifies this service was actually in Iraq (15 December 2005 to 30 May 2006), thereby corroborating his claim.  As a result item 12f and 18 of his DD Form 214 should be corrected to show this additional period of foreign service.


3.  The applicant's DFAS pay record indicates the applicant completed three additional periods of foreign service in the Persian Gulf between 1 July 2006 - 1 March 2010.  The Board would normally consider adding this service to the applicant's military record.  However, he only claims to have served two tours in Iraq.  Further, the medical evidence of record confirms he was injured during his second tour in Iraq which required extensive medical treatment which ultimately led to his retirement by reason of permanent disability.  As a result, it is unlikely he completed the additional three periods of foreign service as indicated by the DFAS record.  Should the applicant have or be able to obtain documentary evidence to corroborate the additional three periods of foreign service, he may submit another application to this Board for consideration.

BOARD VOTE:

____X____  ____X____  ___X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

   a.  amending his DD Form 214 as follows:
   
   	(1)  item 12f - delete and replace the current entry with "0001 07 21";
   
   	(2)  item 18 - add the entry "SERVICE IN IRAQ FROM 20051215-20060530"


b.  and issuing him a correction to his DD Form 214 to reflect these changes.



      ___________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)                                         AR20100027378





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ABCMR Record of Proceedings (cont)                                         AR20100027378



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