IN THE CASE OF:	  

		BOARD DATE:	  20 December 2012

		DOCKET NUMBER:  AR20120009669 


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:

	a.  upgrade of his general discharge to an honorable discharge; and

	b.  correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 4 August 2006 to show:

		(1)  his deployment to Afghanistan;

		(2)  award of the Combat Infantryman Badge (CIB); and

		(3)  his military occupational specialty (MOS) of 42L (Human Resources Specialist).

2.  He states:

	a.  he feels he should have been given more information during his transition and prior to his discharge;

	b.  he has been trying to return to active service; and

	c.  he was advised by his Veteran Service Office to submit an application to this Board for an upgrade of his discharge and to correct the omission of his deployment to Afghanistan.


3.  He provides:

* Orders 364-06, issued by Headquarters, 2nd Battalion, 75th Ranger Regiment, Fort Lewis, WA, dated 27 December 2005
* DD Form 2795 (Pre-Deployment Health Assessment), dated 8 December 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.  Army Regulation 15-185, section II, paragraph 2-5, the regulation under which this Board operates, states the ABCMR will not consider an application until the applicant has exhausted all administrative remedies to correct the alleged error or injustice.  After further review of the applicant's application, the Board determined the portion of his request for an upgrade of general discharge to an honorable discharge must be directed to the Army Discharge Review Board (ADRB) for consideration, which was forwarded to the ADRB on 29 November 2012 in Docket Number AR20120021389.  Therefore, this portion of the applicant's request will not be discussed further in these Proceedings.

3.  The applicant enlisted in the U.S. Army Reserve (USAR) on 11 March 2003.  He was ordered to active duty for training (ADT) from 15 July to 1 November 2003.  At the completion of ADT, he was awarded MOS 42L.  His service record is void of evidence that indicates he served in MOS 42L for one year or more.  He was transferred to his USAR unit and he remained in this component to an unknown date.  His DD Form 214 for the period ending 1 November 2003 reflects his primary MOS as 42L.

4.  On 21 March 2005, he enlisted in the Regular Army (RA).


5.  He provided:

	a.  a DD Form 2795, dated 8 December 2005, that shows he completed a pre-deployment health assessment for deployment to Iraq in support of Operation Iraqi Freedom.  His unit is listed as Company B, 2nd Battalion, 75th Infantry Regiment.

	b.  Orders 364-06, dated 27 December 2005, referring to an attached unit roster that was not included with his application, that shows 2nd Battalion, 75th Infantry Regiment, was ordered to deploy in support of Global War on Terrorism, effective date 29 December 2005.

6.  His service record does not indicate he completed infantry training or that he was awarded or held an infantry MOS.  His service record also does not include orders for award of the CIB and is void of evidence that indicates he was engaged in active ground combat with his unit.

7.  He was discharged on 4 August 2006 under the provisions of Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), chapter 14, for misconduct (serious offense) with a general discharge.  His DD Form 214 for the period ending 4 August 2006 shows in:

	a.  item 11 (Primary Specialty (List number, title and years and months in specialty.  List additional specialty number and titles involving periods of one or more years) the entry "92R1O - Parachute Rigger – 1 year 0 months";

	b.  item 12f (Foreign Service) the entry "0000  00  00," indicating no foreign service during the period covered by the DD Form 214;

	c.  item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) the:

* National Defense Service Medal
* Global War on Terrorism Service Medal
* Army Service Ribbon
* Parachutist Badge

	d.  item 18 (Remarks) no entry for service in Afghanistan.

8.  The Defense Finance and Accounting Service (DFAS) confirmed the applicant received hostile fire/imminent danger pay (HF/IDP) and combat zone tax exclusion (CZTE) from 3 January to 5 April 2006 (a period of 3 months and 3 days) for service in Iraq.

9.  In an email, dated 29 November 2012, the applicant informed a member of the Board's staff that he was deployed to Afghanistan from 31 December 2005 to 6 April 2006 with his former unit, 2nd Battalion, 75th Ranger Regiment.

10.  Army Regulation 635-5 (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 provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge.  It states for:

	a.  item 11, enter the titles of all MOS served for at least one year and include for each MOS the number of years and months served.  For time determination, 16 days or more count as a month.  Do not count basic training and advanced individual training; 

	b.  item 12f, enter the total amount of foreign service completed during the period covered by the DD Form 214; and

	c.  item 18, 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)."

11.  Army Regulation 600-8-22 (Military Awards) states:

	a.  the Afghanistan Campaign Medal is awarded to members who have served in direct support of Operation Enduring Freedom (OEF).  The area of eligibility encompasses all the land area of the country of Afghanistan and all air spaces above the land area.  The period of eligibility is on or after 24 October 2001 to a future date to be determined by the Secretary of Defense or the cessation of OEF.  A bronze service star is authorized for wear with this medal for participation in each credited campaign.  Approved designated Afghanistan campaigns are:

* Liberation of Afghanistan (11 September 2001 - 30 November 2001)
* Consolidation I (1 December 2001 - 30 September 2006)
* Consolidation II (1 October 2006 - date to be determined)

	b.  as amended by Military Personnel (MILPER) Message 08-190, the CIB may be awarded to an infantryman satisfactorily performing infantry duties, assigned to an infantry unit during such time as the unit is engaged in active ground combat, and actively participating in such ground combat.  Specific requirements state, in effect, that an Army Soldier must have an infantry or special forces specialty/MOS and must have satisfactorily performed duty while assigned or attached as a member of an infantry, ranger, or special forces unit of brigade, regimental, or smaller size during any period such unit was engaged in active ground combat.  A Soldier must be personally present and under hostile fire while serving in an assigned infantry or special forces primary duty, in a unit actively engaged in ground combat with the enemy, to close with and destroy the enemy with direct fires.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request regarding his deployment to Afghanistan is acknowledged and determined to have merit.

2.  The applicant states he served in Afghanistan from 31 December 2005 to 6 April 2006 with his former unit, 2nd Battalion, 75th Ranger Regiment; however, DFAS confirmed he received HF/IDP and CZTE during the 3 January to 5 April 2006.  Therefore, this evidence is sufficient as a basis to correct item 12f his
DD Form 214 for the period ending 4 August 2006 to show his foreign service and in item 18 to show the entry "SERVICE IN AFGHANISTAN FROM 20060103 - 20060405."

3.  Based on his service in Afghanistan, he is entitled to the Afghanistan Campaign Medal with one bronze service star.

4.  The applicant's service record is void of evidence and he has not provided any evidence that confirms he was awarded the CIB.

5.  His service record does not show he was awarded an infantry MOS or served as an infantryman in Afghanistan.  In addition, there is no substantial evidence that shows he served during active ground combat and he was personally present under hostile fire.  Therefore, there is an insufficient evidentiary basis for correcting of his DD Form 214 for the period ending 4 August 2006 to show award of the CIB.

6.  The evidence of record shows he was awarded MOS 42L in 2005.  However, his service record is void of evidence and he has not provided any evidence that shows he served in this MOS for 1 or more years.  Therefore, there is an insufficient evidentiary basis for recording his MOS 42L on his DD Form 214 for the period ending 4 August 2006.

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 the DD Form 214 for the period ending 4 August 2006 of the individual concerned be corrected by:

	a.  deleting from item 12f of his DD Form 214 for the periods ending 4 August 2006 the current entry and replacing it with the entry "0000 03 03";

	b.  adding to item 13 of his DD Form 214 for the period ending 4 August 2005 the Afghanistan Campaign Medal with one bronze service star; and

	c.  adding to item 18 of his DD Form 214 for the period ending 4 August 2005 the entry "SERVICE IN AFGHANISTAN FROM 20060103 - 20060405."

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 correcting his DD Form 214 for the period ending 4 August 2006 to show award of the CIB and his MOS 42L.



      ___________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)                                         AR20120009669



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ABCMR Record of Proceedings (cont)                                         AR20120009669



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