BOARD DATE:	  6 December 2012

		DOCKET NUMBER:  AR20120002528 


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 the following corrections to his military records:

	a.  Correct the following items of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 14 October 2008:

		(1)  Item 12 (Record of Service) - include his service in the U.S. Army Reserve (USAR);

		(2)  Item 12f (Foreign Service) - include his service in Iraq and Germany;

		(3)  Item 13 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) - include awards he earned while he was in Iraq, including the award of the Purple Heart based on two incidents when he suffered a traumatic brain injury (TBI); and 

		(4)  Item 14 (Military Education) - include training and classes while stateside and in theater.

	b.  Receipt of erroneous pay for the month of August 2007 and from March 2008 May 2008, and his final payment in November 2008.

2.  The applicant states:

	a.  His service in the USAR is not included on his DD Form 214.

	b.  He was in Kuwait from 18 March to 28 March 2008 and he was in Iraq from 29 March to 18 June 2008.

	c.  He should have received certain awards based on his deployment to Iraq, duties he performed while deployed, and injuries sustained while in combat.  He was medically evacuated that took him out of the fight and to Germany.

	d.  He received much training and classes while stateside and in theater.  He also completed numerous correspondence courses.

	e.  In a letter, dated 29 December 2011, provided by his Senator, he describes two incidents wherein he suffered a TBI.

		(1)  Around May 2008 he was helping a gunner repair a .50 caliber and gunner's turret on a HMMWV (high-mobility multipurpose wheeled vehicle).  He was standing on the hood of the vehicle where “Constantine” wire is kept.  Upon hearing gunfire, he tried to react but his boot got caught in the “Constantine” wire, causing him to fall.  He landed on his back across the RHINO mount (a long, rectangular (not rounded) pole that can be extended horizontally from the front of the vehicle), also hitting his head, before hitting the ground, which was hard and rocky.  He was unconscious but after a couple of minutes he regained consciousness.  He had an immense headache and has since suffered intense migraines, increased seizure activity, convulsions, and pain in his right back, hip, leg, knee, ankle, foot, shoulder, arm, wrist, and hand.

		(2)  He sustained a second TBI within a couple of days when he was again helping the gunner and fell off the HMMWV.  His chief and gunner thought he had blacked out, causing him to fall.  He hit his head on the ground and once again lost consciousness.  He was never taken to a physician to be assessed after these head injuries.

	f.  He states in a letter, dated 7 January 2012, his pay on his monthly Leave and Earnings Statements (LESs) never reflected what a military person of his rank should have been paid.  He was never paid for the month of August 2007 and from March 2008 through May 2008 he was not paid either.  His pay was supposed to be reinstated by 1 June 2008 and this retroactive pay was in the amount of $4,251.31 that he did receive.  His combat zone entitlements and non-taxable status were processed in September 2008 and retroactive pay back to March 2008 was reflected on his September 2008 LES.  However, he never received this pay, as his bank statement can verify.  He also states he did not receive his 28 days of lump-sum leave in the amount of $1,257.20 in his November 2008 end of month pay.

3.  The applicant provides:

* his unit's deployment orders
* his orders to U.S. Army Medical Facility, Fort Hood, TX
* one page from an email from an individual at the Department of Veterans Affairs (VA)

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.  Army Regulation 15-185 (ABCMR) governs operations of the ABCMR.  Paragraph 2-5 of this regulation states the ABCMR will not consider an application until the applicant has exhausted all administrative remedies to correct the alleged error or injustice.

	a.  Applications for award of the Purple Heart based on a TBI must first be submitted to the U.S. Army Human Resources Command (HRC), Attn:
AHRC-PDP-A, 1600 Spearhead Division Avenue, Fort Knox, KY 40122.  If his case cannot be resolved to his satisfaction, and he still feels an error or injustice exists, he may resubmit his application to this Board, including evidence of the denial of his request for relief from HRC.

	b.  The applicant has not provided any evidence that he contacted the Defense Finance and Accounting Service (DFAS) regarding his concerns about erroneous payments.  He must first request assistance from DFAS in that it is DFAS who would have a history of his payments in the Army.  If his case cannot be resolved to his satisfaction, and he still feels an error or injustice exists, he may resubmit his application to this Board, including his payroll records, LESs, and evidence of the denial of his request for relief from DFAS.

	c.  In view of the foregoing, the issues of the Purple Heart and pay discrepancies will not be discussed further in these Proceedings.

3.  On 3 January 2006, he enlisted in the U.S. Army Reserve (USAR) and served until his discharge on 27 February 2007.  He completed 1 year, 1 month, and 
25 days during this period.

4.  On 28 February 2007, he enlisted in the Regular Army.  He was assigned to 4th Battalion, 42nd Field Artillery on 17 May 2007.

5.  Orders 361-002P, issued by Headquarters, 4th Infantry Division (Mechanized), dated 27 December 2007, provided by the applicant, ordered his unit to deploy to the Central Command area of operations (AOE) in support of Operation Iraqi Freedom (OIF) for a period of 455 days, effective 16 March 2008.

6.  On 27 February 2012, DFAS confirmed the applicant received hostile fire/imminent danger pay (HF/IDP) and combat zone tax exclusion (CZTE) from 16 March through 28 June 2008 for service in Kuwait/Iraq.

7.  Orders A-06-811936, issued by Landstuhl Regional Medical Center, Germany, dated 26 June 2008, assigned him to U.S. Army Medical Activity, Fort Hood, TX, for the purpose of continued medical care, with a reporting date of
26 June 2008.

8.  On 10 September 2008, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military justice (UCMJ) for being absent without (AWOL) leave from 8 July to 13 August 2008.

9.  On 14 October 2008, he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administration Separations), paragraph 14-12c, by reason of misconduct – commission of a serious offense, with a general, under honorable conditions discharge.  He completed 1 year, 6 months, and 12 days of creditable active service.  His DD Form 214 contains the following entries:

	a.  item 12a (Date Entered AD (active duty) This Period) - 2007  02  28;

	b.  item 12b (Separation Date This Period) - 2008  10  14;

	c.  item 12c (Net Active Service This Period) - 0001  06  12 (1 year, 6 months, and 12 days);

	d.  item 12e (Total Prior Inactive Service) - 0001  01  25 (1 year, 1 month, and 25 days;

	e.  item 12f - 0000  00  00;

	f.  item 13 - the National Defense Service Medal and the Army Service Ribbon; and

	g.  item 14 - NONE//NOTHING FOLLOWS

10.  There is no evidence of record and the applicant did not provide any evidence that shows he attended any formal in-service (full-time attendance) training courses during the period covered by his DD Form 214.

11.  HRC Military Awards Branch listing of recently-approved unit awards shows 4th Battalion, 42nd Artillery was awarded the Valorous Unit Award for the period 11 April 2008 - 6 March 2009.

12.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy, criteria, and administrative instructions concerning individual and unit military awards.  It states:

	a.  The Global War on Terrorism Service Medal is authorized for award to members of the Armed Forces of the United States who have participated in Global War on Terrorism operations outside of the AOE designated for award of the Global War on Terrorism Expeditionary Medal, Afghanistan Campaign Medal, or Iraq Campaign Medal.  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 nonconsecutive days are authorized the Global War on Terrorism Service Medal.

	b.  The Iraq Campaign Medal is awarded to members who have served in direct support of 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 through 31 December 2011.  A bronze service star is authorized for wear with this medal for participation in each credited campaign.  Among the approved campaigns is the Iraqi Surge (10 January 2007 - 31 December 2008).

13.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  It states for:

	a.  Item 12c – enter the net service for the period shown is computed by subtracting item 12a from item 12b and then deducting any lost time and
non-creditable service after the Soldier's expiration of term of service.

	b.  Item 12e – enter the total amount of prior inactive service, less lost time, if any.

	c.  Item 12f – enter foreign service performed during the period covered in Item 12c of the DD Form 214. 

	d.  Item 14 – enter formal in-service (full-time attendance) training courses successfully completed during the period of service covered by the
DD Form 214.  The entry is to include the title, length in weeks, and the year completed.  The information entered in Item 14 is to assist the member after separation in job placement and counseling; therefore training courses for combat skills will not be listed.

	e.  Item 18 – For an active duty Soldier deployed with his unit during the period covered by the DD Form 214, enter the statement "SERVICE IN (name of country) FROM (inclusive dates in YYYY/MM/DD format).

DISCUSSION AND CONCLUSIONS:

1.  Item 12c shows his net active service during the period shown in item 12a and 12b of his DD Form 214.  His service in the USAR of 1 year, 1 month, and 25 days is shown in item 12e of his DD Form 214.  Therefore, his service is correctly recorded on his DD Form 214.

2.  The exact dates he was in Iraq are not in his military records.  However, he states he was in Kuwait from 18 - 28 March 2008 and in Iraq from 29 March to
18 June 2008.  DFAS confirmed he was paid HF/IDP from 16 March to 28 June 2008.  As such, there is sufficient evidence to determine he had 3 months and 13 days of foreign service.  Therefore, his DD Form 214 should be changed to show 3 months and 13 days (0000  03  13) in item 12f.  In addition the following entries should be added to item 18 of his DD Form 214:

* SERVICE IN KUWAIT FROM 20080318 - 20080328
* SERVICE IN IRAQ FROM 20080329 - 20080618

3.  Based on his service in Iraq with 4th Battalion, 42nd Artillery he is authorized to add the following awards to item 13 of his DD Form 214:

* Valorous Unit Award
* Iraq Campaign Medal with one bronze service star

4.  Based on his service outside of the AOE designated for award of the Global War on Terrorism Expeditionary Medal, Afghanistan Campaign Medal, or Iraq Campaign Medal he is authorized the Global War on Terrorism Service Medal.  Therefore, this service medal should be added to Item 13 of his DD Form 214.

5.  Item 14 of his DD Form 214 would only reflect formal in-service (full-time attendance) training courses he attended during the period covered by the 
DD Form 214.  There is no evidence in his military records of his attending formal in-service training courses during his period of service.  Therefore, there is no basis for adding any courses to his 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 amending his DD Form 214 as follows:

	a.  Item 12f – delete current entry and replace it with the entry 0000  03  13;

	b.  Item 13 – add the:

* Valorous Unit Award
* Iraq Campaign Medal with one bronze service star
* Global War on Terrorism Service Medal

	
   
c.  item 18 – add the entry: 

* SERVICE IN KUWAIT FROM 20080318 - 20080328 
* SERVICE IN IRAQ FROM 20080329 - 20080618

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 military education.




      _________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)                                         AR20120002528



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ABCMR Record of Proceedings (cont)                                         AR20120002528



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