IN THE CASE OF:	

	BOARD DATE:	21 August  2008  

	DOCKET NUMBER:  AR20080007005 


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 that he served in support of Operation Iraqi Freedom (OIF), all authorized awards and decorations based on his military service, and a change to his Reentry Eligibility (RE) Code.  He also requests a DD Form 214 for his service in the U.S. Army Reserve (USAR).

2.  The applicant states, in effect, he has pictures to prove he served in support of OIF.  He also states that he was recently informed that his disability rating has been reduced from 40 percent to 10 percent, which allows him to reenlist.  As a result, his RE Code must be changed to allow him to reenlist.  He further states he served in the USAR with the 323rd Engineer Platoon, 89th Regional Support Command in 1998 and 1999, but was not issued a DD Form 214.

3.  The applicant provides a copy of a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States), dated
17 March 2008, and DD Form 214, with an effective date of 19 February 2004.

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 service records show that he enlisted in the USAR on 27 August 1998.  On 28 October 1998, the applicant was ordered to Active Duty for Training (ADT) for a period of 24 weeks.  Upon completion of basic combat training and advanced individual training, he was awarded military occupational specialty (MOS) 51M (Firefighter).

3.  The applicant's military service records contain a DD Form 214, with an effective date of 7 July 1999.  This document shows that the applicant entered active duty on 28 October 1998, was honorably discharged on 7 July 1999, and credited with completing 0 years, 8 months, and 10 days net active service this period.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of the DD Form 214 shows he was awarded the Expert Marksmanship Qualification Badge with Grenade Bar and Sharpshooter Marksmanship Qualification Badge with Rifle Bar.  The DD Form 214 also shows that the separation authority was Army Regulation 635-200, Chapter 13, and the reason for his separation was “Unsatisfactory Performance.”

4.  The applicant's military service records show he enlisted in the U.S. Army and entered active duty for a period of 3 years on 25 July 2002.  Upon completion of advanced individual training, he was awarded MOS 13M (Multiple Launch Rocket System Crewmember).

5.  The applicant's military service records contain a DD Form 214, with an effective date of 19 February 2004.  This document shows the applicant entered active duty on 25 July 2002 and he was honorably discharged on 19 February 2004.  This document also shows, in pertinent part, that he was credited with completing 0 years, 2 months, and 28 days foreign service; 1 year, 6 months, and 25 days net active service this period; 0 years, 8 months, and 10 days total prior active service; and 3 years, 0 months, and 17 days total prior inactive service.  Item 13 of the DD Form 214 shows he was awarded the National Defense Service Medal and Army Service Ribbon.  The DD Form 214 also shows that the separation authority was Army Regulation 635-40, paragraph
4-24b(3), and the reason for his separation was "Disability, Severance Pay." Based on the authority and reason for his separation, the applicant was assigned a Separation Program Designator (SPD) Code of “JFL” and an RE Code of “3.”

6.  The applicant's military service records are absent documentation that shows he deployed overseas in support of Operation Iraqi Freedom (OIF).

7.  A review of the applicant's records reveals that he may be authorized additional awards that are not shown on his DD Form 214.

8.  There is no evidence the applicant received the first award of the Good Conduct Medal.  There also is no evidence the applicant was disqualified by his chain of command from receiving the Good Conduct Medal and his records do not contain any adverse information during the period of service from 25 July 2002 through 19 February 2004.

9.  In connection with the processing of this case, coordination was made with Army Military Pay Operations, Defense Finance and Accounting Service (DFAS), Cleveland, Ohio.  This coordination revealed that DFAS records show the applicant received imminent danger pay for service in a combat zone (i.e., OIF) from 22 March 2003 to 15 June 2003.

10.  In connection with the processing of this case, the ABCMR analyst attempted to contact the applicant regarding his service in support of OIF and the criteria concerning the authorized service medals.  However, the analyst was not successful in making contact with the applicant.

11.  Department of Defense (DoD) Financial Management Regulation (FMR), Volume 7A (Military Pay Policy and Procedures - Active Duty and Reserve Pay), Chapter 10 (Special Pay - Duty Subject to Hostile Fire or Imminent Danger), paragraph 100102 (Payment), in pertinent part, provides that Hostile Fire Pay (HFP)/Imminent Danger Pay (IDP) is payable at a monthly rate of $225.  It is payable in addition to all other pays or allowances.  Additionally, it is payable in the full amount without being prorated or reduced, for each month, during any part of which a member qualifies.  Active and Reserve component members who qualify, at any time during a month, will receive the full amount of HFP/IDP regardless of the actual period of time served on active or inactive duty during that month.

12.  Army Regulation 600-8-22 (Military Awards) provides that the Good Conduct Medal is awarded to individuals who distinguish themselves by their conduct, efficiency and fidelity during a qualifying period of active duty enlisted service. This period is 3 years except in those cases when the period for the first award ends with the termination of a period of Federal military service.  Although there is no automatic entitlement to the Good Conduct Medal, disqualification must be justified.  

13.  Headquarters, U.S. Army Human Resources Command, Alexandria, Virginia, message, dated 17 March 2004, disseminated implementing instructions for award of the Global War on Terrorism Expeditionary Medal for Soldiers who deploy abroad for service in the Global War on Terrorism (GWOT) operations on or after 11 September 2001 to 30 April 2005.  To be eligible for this award a Soldier must be mobilized with or assigned or attached to a unit participating in designated operations for 30 consecutive days or for 60 non-consecutive days in the areas of eligibility designated, or must meet one of the following criteria: a) be engaged in actual ground combat against the enemy and under circumstances involving grave danger of death or serious bodily injury from enemy action, regardless of the time in the area of eligibility; b) while participating in the designated operation, regardless of time, is killed or wounded/injured requiring medical evacuation from the area of eligibility; or c) participate as a regularly assigned air crew member flying sorties for 30 consecutive days or 60 non-consecutive days into, out of, within, or over the area of eligibility in direct support of Operations Enduring Freedom and/or Iraqi Freedom.  

14.  Award of the Global War on Terrorism Expeditionary Medal is authorized to Soldiers who deployed abroad in Operations Enduring Freedom and Iraqi Freedom in the following areas of eligibility (AOE):  Afghanistan, Algeria, Bahrain, Bosnia-Herzegovina, Bulgaria (Bourgas), Chad, Crete, Cyprus, Diego Garcia, Djibouti, Egypt, Eritrea, Ethiopia, Georgia, Hungary, Iran, Iraq, Israel, Jordan, Kazakhstan, Kenya, Kosovo (only specific GWOT operations not associated with operations qualifying for the Kosovo Campaign Medal), Kuwait, Kyrgyzstan, Lebanon, Mali, Mauritania, Niger, Oman, Pakistan, Philippines, Qatar, Romania (Constanta), Saudi Arabia, Somalia, Syria, Tajikistan, Turkey, Turkmenistan, Uganda, United Arab Emirates, Uzbekistan, Yemen, that portion of the Arabian Sea north of 10 degrees north latitude and west of 68 degrees longitude, Bab El Mandeb, Gulf of Aden, Gulf of Aqaba, Gulf of Oman, Gulf of Suez, that portion of the Mediterranean Sea east of 28 degrees east longitude and boarding and searching vessel operations, Persian Gulf, Red Sea, Strait of Hormuz, and Suez Canal.  The message states that under no condition will any Soldier in the United States receive this award.

15.  Headquarters, U.S. Army Human Resources Command, Alexandria, Virginia, message, dated 17 March 2004, disseminated implementing instructions for award of the Global War on Terrorism Service Medal.  This award is designated for Soldiers who have participated in or served in support of GWOT operations outside of the designated area of eligibility determined for award of the Global War on Terrorism Expeditionary Medal, on or after 11 September 2001 to a date to be determined.  All Soldiers on active duty, including Reserve Component Soldiers mobilized or National Guard Soldiers activated, on or after 11 September 2001 to a date to be determined, having served 30 consecutive days or 60 non-consecutive days, are authorized this award.

16.  Soldiers may receive both the Global War on Terrorism Service Medal and the Global War on Terrorism Expeditionary Medal if they meet the requirements of both awards; however, the same period of service establishing one cannot be used to justify service eligibility for the other.  Battalion commanders and commanders of separate units are authorized to award the Global War on Terrorism Service Medal and Global War on Terrorism Expeditionary Medal to qualified personnel; permanent orders are not required.

17.  Army Regulation 600-8-22 provides for award of the Iraq Campaign Medal to individuals who have served in direct support of Operation Iraqi Freedom (OIF).  The area of eligibility encompasses all land area of the country of Iraq, and 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.  Service members must have been assigned, attached, or mobilized to units operating in the area of eligibility for 30 consecutive days or for 60 non-consecutive days, or engaged in combat during an armed engagement, regardless of the time in the area of eligibility.  No service member will be entitled to both the Global War on Terrorism Expeditionary Medal and the Iraq Campaign Medal for the same act, achievement or period of service.  Precedence for the Iraq Campaign Medal will be positioned below the Afghanistan Campaign Medal and above the Global War on Terrorism Expeditionary Medal.

18.  Army Regulation 600-8-22 provides that a bronze service star is authorized to be worn on the Iraq Campaign Medal for participation in each of the following campaigns:  Liberation of Iraq (19 March 2003 to 1 May 2003), Transition of Iraq (2 May 2003 to 28 June 2004), Iraqi Governance (29 June 2004 to 15 December 2005), and National Resolution (16 December 2005 to a date to be determined).

19.  Army Regulation 600-8-22, in pertinent part, sets forth requirements for award of basic marksmanship qualification badges.  The qualification badge is awarded to indicate the degree in which an individual has qualified in a prescribed record course, and an appropriate bar is furnished to denote each weapon with which the individual has qualified.  The qualification badges are in three classes:  Expert, Sharpshooter, and Marksman.

20.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or  Separation) establishes the Army Physical Disability Evaluation System according to the provisions of Title 10, United States Code, Chapter 61.  It sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  Paragraph 4-24b of this Army regulation states, in pertinent part, that based upon final decision of the
U.S. Army Physical Disability Agency or Army Physical Disability Board, the
U.S. Army Human Resources Command will issue retirement orders or other disposition instructions, and subparagraph 4-24b(3) authorizes separation for physical disability with severance pay under Title 10, United States Code, sections 1203 and 1206.

21.  Army Regulation 635-5-1 (Separation Program Designator Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It identifies the SPD Code of “JFL” as the appropriate code to assign RA enlisted Soldiers separated under the provisions of Army Regulation 635-40, paragraph 4-24b(3), based on “Disability, Severance Pay.  The SPD/RE Code Cross Reference Table establishes RE-3 as the proper RE Code to assign Soldiers separated with an SPD Code of “JFL.”

22.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) provides, in pertinent part, that prior to discharge or release from active duty, individuals will be assigned RE codes based on their service records or the reason for discharge.  RE-3 applies to persons who are not considered fully qualified for reentry or continuous service at the time of separation, but the disqualification is waivable.

23.  Army Regulation 601-210 also provides, in pertinent part, that RE codes are used for administrative purposes only, and that applicants should be advised that RE codes are not to be considered derogatory in nature, they simply are codes used for identification of an enlistment processing procedure.  This document also provides procedures for the verification of an applicant's prior service.

24.  Army Regulation 601-210 further prescribes eligibility criteria governing the enlistment of persons, with or without prior service (PS), into the RA and the USAR.  Paragraph 3-20 (Verification of prior service) provides, in pertinent part, that applicants who are thought to have had, or who claim to have had, PS in any U.S. Armed Force will not be enlisted in the RA or USAR until their PS, if any, is verified.

25.  Army Regulation 601-210 also provides that applicants who do not meet established enlistment standards are not eligible for enlistment unless a waiver is authorized.  Recruiters do not have the authority to disapprove a waiver request or to refuse to forward an applicant's request to the approval authority. Commanders cited in this regulation have the authority to approve waivers as appropriate.

26.  The governing Army regulation further provides that, prior service Army personnel will be advised that RE codes may be changed only if they are determined to be administratively incorrect.  Prior service applicants requesting enlistment in the Army who have correct RE codes will be processed for a waiver at their request, if otherwise qualified and waiver is authorized.  No requirement exists to change an RE code to qualify for enlistment.  Only when there is evidence to support an incorrect RE code or when there is an administrative error will an applicant be advised to request a correction.

27.  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 guidance on the preparation of the DD Form 214.  It states, in pertinent part, that the source documents for entering information on the DD Form 214 will be the Personnel Qualification Record (PQR), Enlisted/Officer Record Brief (ERB/ORB), or any other document authorized for filing in the Official Military Personnel File (OMPF).

28.  Paragraph 2-4 of the separation documents regulation contains item-by-item instructions for completing the DD Form 214.  The instructions for completing Item 12, Block f, state to enter the total amount of foreign service completed during the period covered by the DD Form 214, as taken from the PQR/ERB/ ORB.  The instructions for Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) state to list awards and decorations for all periods of service in the priority sequence specified in Army Regulation 600-8-22.  Each entry will be verified by the Soldier's records.  Do not use abbreviations.  Item 18 (Remarks) states to use this block for entries required by Headquarters, Department of the Army, for which a separate block is not available and for completing entries that are too long for their blocks.  It also state, in pertinent part, 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)."  Item 27 (Reentry Code) instructs to refer to Army Regulation
601-210 for reentry eligibility codes to be entered on copies 2, 4, 7, and 8 only. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his DD Form 214, with an effective date of 19 February 2004, should be corrected to show that he served in support of Operation Iraqi Freedom, all authorized awards and decorations based on his military service, and a change to his RE Code.  He also contends he should be issued a DD Form 214 for his military service in the USAR in 1998 and 1999.

2.  The evidence of record shows that the DD Form 214 must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  The evidence of record also shows the applicant was issued a DD Form 214 for the period of his active duty service from 28 October 1998 through 7 July 1999.  There is no evidence of record to show that the DD Form 214 is issued based upon service in a Reserve status in the USAR.  Therefore, the applicant is not entitled to a DD Form 214 for his service in the USAR.

3.  The evidence of record shows the applicant was issued a DD Form 214 for the period of his active duty service from 25 July 2002 through 19 February 2004. The evidence of record also shows that the applicant was separated from the U.S. Army based upon physical disability.  The evidence of record further shows the RE Code (i.e., RE-3) that the applicant received was appropriately assigned based on the authority and reason for his separation.  Thus, the assigned RE Code of RE-3 for the period of service under review is correct and remains valid. Therefore, the applicant is not entitled to correction of his RE Code.

4.  The evidence of record shows the applicant was authorized HFP/IDP during the period 22 March 2003 to 15 June 2003 for his service in a HFP/IDP area in support of OIF.  The evidence of record also shows the applicant was credited with completing 2 months and 28 days foreign service during the period of service under review.  Thus, the evidence of record supports the applicant’s claim that he served overseas in support of OIF.  Therefore, the applicant’s
DD Form 214 should be corrected to show his foreign service in support of OIF.

5.  The evidence of record shows that the applicant served a qualifying period for award of the Global War on Terrorism Service Medal.  Therefore, it would be appropriate to correct his records to show this service medal.

6.  The evidence of record shows that the applicant served a qualifying period for award of the Global War on Terrorism Expeditionary Medal.  The evidence of record also shows that the applicant served a qualifying period for award of the Iraq Campaign Medal.  The evidence of record further shows that no service member will be entitled to both the Global War on Terrorism Expeditionary Medal and the Iraq Campaign Medal for the same act, achievement or period of service. The Iraq Campaign Medal has a higher precedence than the Global War on Terrorism Expeditionary Medal.  Therefore, it would be appropriate to correct the applicant’s records to show the Iraq Campaign Medal.

7.  The evidence of record shows that the applicant was authorized HFP/IDP during the period 22 March 2003 to 15 June 2003 for his service in support of Operation Iraqi Freedom.  Thus, records confirm the applicant participated in the Liberation of Iraq and Transition of Iraq campaigns.  Therefore, it would be appropriate to correct the applicant’s records to authorize 2 bronze service stars to be affixed to his Iraq Campaign Medal.

8.  The evidence of record shows the applicant completed a qualifying period of active duty enlisted service for award of the Good Conduct Medal.  Therefore, his records should be corrected to show award of the Good Conduct Medal.

9.  Records show the applicant qualified and was awarded the Expert Marksmanship Qualification Badge with Grenade Bar and Sharpshooter Marksmanship Qualification Badge with Rifle Bar.  Therefore, it would be appropriate to correct his DD Form 214, with an effective date of 19 February 2004, to show the 2 qualification badges with their respective component bar.

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.  awarding the applicant the Good Conduct Medal for exemplary conduct, efficiency, and fidelity for the period 25 July 2002 to 19 February 2004;

     b.  adding to Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 the Good Conduct Medal, Iraq Campaign Medal with 2 bronze service stars, Global War on Terrorism Service Medal, Expert Marksmanship Qualification Badge with Grenade Bar, and Sharpshooter Marksmanship Qualification Badge with Rifle Bar; and

     c.  adding to Item 18 (Remarks) of his DD Form 214 the entry, “SERVICE IN KUWAIT AND IRAQ FROM 20030322 – 20030615//NOTHING FOLLOWS.”

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 changing the applicant’s RE Code and issuance of a DD Form 214 for his USAR service.

3.  In his application, the applicant requests a DD Form 214 for his service in 1998 and 1999.  The Board requests that the Case Management Services Division - St. Louis provide the applicant a copy of his DD Form 214, with an effective date of 7 July 1999.




       _    __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)                                         AR20080007005



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ABCMR Record of Proceedings (cont)                                         AR20080007005



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