IN THE CASE OF:	  

		BOARD DATE:	  23 June 2011

		DOCKET NUMBER:  AR20100028217 


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 his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to show the following:

* Combat Action Badge (CAB)
* Iraq Campaign Medal
* Rank as corporal (CPL)/E4 

2.  He states his rank changed to CPL on 22 April 2004.

3.  He provides his DD Form 214, Orders 05-01, dated 22 April 2004 and a memorandum, dated 22 February 2005.

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 is requesting correction of his records to show award of the CAB.  The U.S. Army Human Resources Command provided processing procedures for award of the CAB.  He has been notified by separate correspondence of the procedures for applying for this badge.  As a result, the CAB will not be discussed further in this Record of Proceedings.

3.  The applicant’s records show he served in the U.S. Marine Corps for 4 years and was honorably released from active duty on 5 February 1993.  On 1 May 2003, he enlisted into the Missouri Army National Guard (MOARNG) and was ordered to active duty on 3 January 2004 in support of Operation Iraqi Freedom.  He was promoted to specialist (SPC)/E4 on 2 January 2004.  He was honorably released from active duty and returned to his MOARNG unit on
25 March 2005.

4.  His DD Form 214 lists his rank in item 4a as SPC with an effective date of pay grade listed in Item 12h of 2 January 2004.  

5.  Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214 lists the following:

* Driver Badge with Wheel
* Army Label Button
* Army Commendation Medal (ARCOM)
* Navy Unit Commendation
* National Defense Service Medal (2nd Award)
* Global War on Terrorism Service Medal
* Global War on Terrorism Expeditionary Medal (GWOTEM)
* Southwest Asia Service Medal with 1 bronze service star
* Armed Forces Reserve Medal with "M" Device
* Army Service Ribbon
* Sea Service Deployment Ribbon

6.  Item 18 (Remarks) shows he was ordered to active duty in support of Operation Iraqi Freedom, service in Iraq/Kuwait from 22 February 2004 to 
23 February 2005.

7.  He provided Orders 05-01, dated 22 April 2005, that show he was laterally appointed to CPL/E4 effective 22 April 2004, with a date of rank listed as 3 May 2003.  Additionally, memorandum, Subject:  Certification and Award of the Driver Badge, dated 22 February 2005, lists his rank as CPL.


8.  His certificate for the award of the ARCOM, dated 2 January 2004, show his rank as CPL.

9.  The applicant's record is void of any disciplinary actions or any orders showing he was reverted to SPC.

10.  Army Regulation 600-8-22 (Military Awards) states the Iraq Campaign Medal is awarded to members who have 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 Iraq Campaign Medal 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.  The Iraq Campaign Medal may be awarded posthumously, only one award of this medal may be authorized for any individual, and under no condition will personnel or units receive the Iraq Campaign Medal, the GWOTEM, the Global War on Terrorism Service Medal, the Afghanistan Campaign Medal, or the Armed Forces Expeditionary Medal for the same action, time period, or service. 

11.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) states that all lateral appointments will be issued on orders.  Additionally, paragraph 7-11d states that Soldiers will normally retain the grade of CPL and perform the duties of an NCO; however, the appointment authority may laterally appoint CPL to SPC without the individual's consent for: 

* Demonstrated inefficiency in technical, supervisory or other requirements of the MOS
* Significant loss of qualifications, including medical inability to perform the duties of CPL in that MOS 
* Disciplinary action under UCMJ or criminal convictions that adversely affects the Soldier's ability to perform the duties of a CPL
 
12.  Army Regulation 635-5 (Personnel Separations) provides guidelines for the preparation of the DD Form 214.  Paragraph 2-9 instructs the preparer to enter in items 4a/4b the rank/pay grade in which serving at the time of separation.

13.  A review of the applicant's records indicates he is entitled to an additional award that is not shown on his DD Form 214.


14.  Permanent Orders 001-059, dated 2 January 2005, contained in his official military personnel file, show he was awarded the Army Good Conduct Medal (AGCM) for the period of service from 3 January 2004 to 2 January 2005. Additionally, this order shows his rank as CPL.

DISCUSSION AND CONCLUSIONS:

1.  It is unknown why the applicant's date of rank is listed as 3 May 2003 on his lateral appointment orders.  Nevertheless, the available evidence shows he was laterally appointed to the rank of CPL on 22 April 2004.  His ARCOM certificate and AGCM orders both show his rank as CPL.  Further, the AGCM orders were issued two months prior to the issuance of his DD Form 214.  There are no adverse actions in his available files and no documentation that shows his rank was reverted to SPC prior to the issuance of his DD Form 214.  Therefore, in the interest of justice, it would be appropriate to correct his records to show his rank as CPL.

2.  It appears that the applicant was awarded the GWOTEM for his service in support of Operation Iraqi Freedom from 22 February 2004 to 23 February 2005. Therefore, he is not eligible for the award of the Iraq Campaign Medal.

3.  Orders verify that he is entitled to correction of his DD Form 214 to show award of the AGCM for the period 3 January 2004 to 2 January 2005.

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.  showing his rank in item 4a of his DD Form 214 as CPL;

   b.  awarding him the AGCM (1st Award) for the period 3 January 2004 to       2 January 2005; and
   
   c.  adding to item 24 of his DD Form 214 the AGCM (1st Award).
   
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 the award of the Iraq Campaign Medal.



      _______ _   __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)                                         AR20100028217





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ABCMR Record of Proceedings (cont)                                         AR20100028217



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