IN THE CASE OF:
BOARD DATE: 16 August 2011
DOCKET NUMBER: AR20110002143
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 deployment dates in item 18 (Remarks) of his
DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 31 August 2004 be corrected. He also requests, in effect, item 8a (Last Duty Assignment and Major Command) of this DD Form 214 be corrected to show Company C, 801st Main Support Battalion (MSB).
2. The applicant states:
* He served in Kuwait/Iraq from 28 February 2003 to 22 October 2003 not
27 March 2003 to 22 October 2003
* This error is affecting his Department of Veterans Affairs disability claim
* His claim was denied because he presented events that occurred in February 2003 in Kuwait as stressors
* Item 8a of his DD Form 214 for the period ending 31 August 2004 should show Company C , 801st MSB
3. The applicant provides:
* Three Defense Finance and Accounting Service (DFAS) Leave and Earnings Statements
* Post-deployment health assessment
* Eyewitness statement
* DD Form 214 for the period ending 31 August 2004
* Letter, dated 25 January 2001, from his psychologist
* Articles from a book
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. Having had prior honorable service in the Regular Army (RA) from
24 September 1981 to 23 September 1984, he enlisted in the RA on 7 January 1987. He served as a tow dragon repairer and remained on active duty through continuous reenlistments until he retired on 31 August 2004 in the rank of sergeant first class.
3. Item 8a of his DD Form 214 for the period ending 31 August 2004 shows his last duty assignment was "0801 CS BN" [801st Combat Support Battalion]. Item 18 shows he served in Iraq from 27 March 2003 to 22 October 2003.
4. DFAS confirmed the applicant received hostile fire/imminent danger pay and combat zone tax exclusion from 1 March 2003 through 22 October 2003 for Kuwait.
5. His final Noncommissioned Officer Evaluation Report (NCOER) covering the period November 2002 through October 2003 shows he was assigned to Company C, 801st MSB, 101st Airborne in Iraq.
DISCUSSION AND CONCLUSIONS:
1. He contends he served in Kuwait/Iraq from 28 February 2003 to 22 October 2003.
2. His DD Form 214 for the period ending 31 August 2004 shows he served in Iraq from 27 March 2003 to 22 October 2003. However, DFAS confirms he served in Kuwait/Iraq from 1 March 2003 to 22 October 2003. Therefore, this information is accepted as sufficient evidence to correct item 18 of this DD Form 214 to show his deployed service.
3. Item 8a of his DD Form 214 for the period ending 31 August 2004 shows his last duty assignment was the 801st Combat Support Battalion. However, his final NCOER shows he was assigned to Company C, 801st MSB in Iraq until November 2003. Therefore, this information is accepted as sufficient evidence on which to amend his last duty assignment in item 8a of this DD Form 214.
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. deleting the entry "0801 CS BN" in item 8a of his DD Form 214 for the period ending 31 August 2004 and replacing it with the entry "C CO 801ST MSB"; and
b. deleting the entry "SERVED IN IRAQ FROM: 27 MARCH 2003
22 OCTOBER 2003" in item 18 of this DD Form 214 and replacing it with the entry "SERVED IN KUWAIT/IRAQ FROM: 20030301-20031022."
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 item 18 of his
DD Form 214 for the period ending 31 August 2004 to show he served in Kuwait/Iraq from 28 February 2003 to 22 October 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) AR20110002143
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ABCMR Record of Proceedings (cont) AR20110002143
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