IN THE CASE OF:	  

		BOARD DATE:	  24 May 2011

		DOCKET NUMBER:  AR20100027459 


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 show his foreign service in Iraq and the dates of that service.  He also requests reconsideration of his previous application to be awarded the Purple Heart.

2.  He states Department of Veterans Affairs (VA) records show he was airlifted from Iraq to Germany where he spent a period of time before being sent to Walter Reed Army Medical Center (WRAMC) in Washington, DC.  He states he was involved in an improvised explosive device (IED) incident in Iraq, was wounded in the incident, and did not receive the Purple Heart.  He states he was with the 590th Field Service Company (FSC) at Camp Spiker and Tikrit, Iraq.

3.  He provides a copy of a DD Form 214WS (DD Form 214 Worksheet).  

CONSIDERATION OF EVIDENCE:

1.  Regarding the portion of his request pertaining to his foreign service, 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 has requested reconsideration of ABCMR Docket Number AR20050018182 regarding the Purple Heart.  This case was considered by the ABCMR on September 21, 2006.  

   a.  Army Regulation 15-185 sets forth procedures for processing requests for correction of military records.  Paragraph 2-15b governs requests for reconsideration.  This provision of the regulation allows an applicant to request reconsideration of an earlier ABCMR decision if the request is received within one year of the ABCMR's original decision and it has not previously been reconsidered.  
   
   b.  His request for reconsideration is dated well after the one-year window and he has not provided any new evidence or a new argument that warrants consideration by the ABCMR.  Accordingly, these proceedings will not further discuss the portion of his application pertaining to the Purple Heart.  He has been sent a letter informing him of this determination.  

3.  The applicant enlisted in the Regular Army on 7 March 2002.  He received a general discharge on 27 October 2005 after completing 3 years and 9 months of active military service.

4.  Item 12f (Foreign Service) of his DD Form 214 shows 1 year, 2 months, and 1 day.  His record does not show the source document for this entry.

5.  His DD Form 214 does not show he served in Iraq.

6.  Section I (Assignment Information) of his Enlisted Record Brief (ERB) shows he had 13 months of overseas duty in Kuwait with a year/month of return of October 2003.  The record does not show the source document for this entry.  

7.  His record includes a memorandum, subject: Statement of Wartime Service, dated 1 March 2005 and signed by the Commander, 548th Corps Support Battalion, Fort Drum, NY.  The memorandum certified the deployed service in Iraq of Soldiers on an attached list who were assigned to the 590th FSC with duty in Tikrit, Iraq during the period January 2004 to January 2005.  The memorandum further states it was to serve as verification of deployment dates and would be used to update military personnel records.  The attached list shows the applicant's name and shows he served in Iraq from 14 January to 29 April 2004.  
8.  His medical records show he was examined at WRAMC on 23 April 2004 and indicate he incurred a fracture of his left femur in a motor vehicle accident in Iraq on 28 February 2004.  

9.  The available records do not show when he was evacuated from Iraq to Germany.  

10.  During the processing of this case, the Defense Finance and Accounting Service (DFAS) reviewed his Master Military Pay Account (MMPA).  His MMPA shows he received hostile fire pay/imminent danger pay (HFP/IDP) and the combat zone tax exclusion for Kuwait from 15 January 2004 through 1 August 2004.

11.  The Department of Defense Financial Management Regulation provides that a member entitled to HFP/IDP who incurs an injury in a combat zone and is hospitalized outside of the theater of the combat zone for treatment of the injury is entitled to HFP/IDP for each month hospitalization continues, up to an additional 3 months after the month in which the injury occurred.

12.  Army Regulation 635-5 (Personnel Separations - 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, enter the statement "SERVICE IN (NAME OF COUNTRY DEPLOYED) FROM (inclusive dates for example, YYYYMMDD - YYYYMMDD)" in block 18 of the DD Form 214.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record is ambiguous with regard to the applicant's actual dates of service in Iraq.  

2.  The record shows his battalion commander certified that he served in Iraq from 14 January to 29 April 2004.  The applicant states he was evacuated to Germany and then sent to WRAMC after being injured in Iraq.  Medical records show he was examined in the United States at WRAMC on 23 April 2004 and that he was seriously injured on 28 February 2004.  

3.  The record shows no substantial reasons to question his battalion commander's certification of the beginning date of his service in Iraq as 14 January 2004.  The battalion commander would certainly know when his battalion deployed.  However, the end date verified by the battalion commander is incorrect.  Medical records clearly show the applicant was at WRAMC on 23 April 2004.  

4.  DFAS records indicate he was deployed to Kuwait from 15 January through 1 August 2004.  (At the time, he would have been processed into the theater of operations through Kuwait, which is likely why DFAS records show he served in that country.)  However, these records only indicate the amount of time he received HFP/IDP, not the amount of time he was actually in the theater of operations.  Because he was injured in a combat zone, he was authorized to receive HFP/IDP after he was evacuated from Iraq.  It appears that his eligibility for HFP/IDP was calculated from the date he returned to the United States, not the date he was actually evacuated from Iraq.  The record shows he received HFP/IDP for approximately 3 months after he was seen at WRAMC in April 2004.

5.  The best accounting of the end date of his service in Iraq appears to be 28 February 2004, the day he fractured his left femur.  Because of the severity of this injury, it is reasonable to assume he was medically evacuated to Germany the day he was injured or very shortly thereafter.  

6.  In view of the foregoing, it would be appropriate to correct his DD Form 214 to show he served in Iraq from 14 January to 28 February 2004. 

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 


adding the following statement to item 18 of his DD Form 214:  SERVICE IN IRAQ FROM 20040114 - 20040228.



      __________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)                                         AR20100027459



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100027459



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1