IN THE CASE OF:

		BOARD DATE:  21 November 2013

		DOCKET NUMBER:  AR20130004956 


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 correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 24 February 2009 to show he served in Iraq from 23 May 2007 to April 2008.

2.  The applicant states, in effect, he was brought onto active duty effective 
23 May 2007 for 400 days.  He volunteered to go to Iraq with Company C, 
1st Battalion, 175th Infantry and returned in 2008.  He was discharged on 
24 February 2009 and the entire tour in Iraq was left off his DD Form 214.  This error affects his benefits.

3.  The applicant provides:

* State of Maryland Military Department Orders 143-089, dated 23 May 2007
* Headquarters, United States Army Fort Dix, New Jersey, NATO Travel Order 213-001, dated 1 August 2007
* his DD Form 214 for the period ending 24 February 2009

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 enlisted in the Virgin Islands Army National Guard on 28 July 1997.  He subsequently transferred to the Hawaii Army National Guard (HIARNG), the Maryland (MDARNG), and back to the HIARNG.  

3.  He provides copies of:

	a.  State of Maryland Orders 143-089, dated 23 May 2007, showing he was ordered to active duty as a member of his Reserve Component unit.  The reporting date was 22 May 2007 and the period was "Not to exceed 400 days." The purpose is shown as "ISO CONOP IRAQI FREEDOM (TF58)."

	b.  Headquarters, United States Army Fort Dix, New Jersey, NATO Travel Order Number 213-001, dated 1 August 2007.  His name is listed in Appendix A. The order shows in Item 2:  "Will travel from United States to England, Italy, Germany, Ireland, Netherlands, Cyprus, Turkey, and Spain."  Date of departure is shown as 1 August 2007.

4.  On 24 February 2009, the applicant was honorably released from active duty (REFRAD) at the completion of required active service.  His DD Form 214 shows in:

	a.  item 12a (Date Entered AD This Period):  "2008 07 18";

	b.  item 12b (Separation Date this Period):  "2009 02 24";

	c.  item 12c (Net Active Service This Period):  "0000 07 07";

	d.  item 12f (Foreign Service) the entry "0000  07 24" (indicating 7 months and 24 days); and

	e.  item 18 (Remarks), the entry "Service in Iraq 20070818 - 20080411."

5.  The Defense Finance and Accounting Service (DFAS) confirmed the applicant:

	a.   Received hostile fire/imminent danger pay (HF/IDP) and combat zone tax exclusion (CZTE) from 3 August 2007 through 15 April 2008 for Kuwait.  This period equates to 8 months and 13 days of foreign service.

	b.  Received pay and allowances for active duty from 22 May 2007 through 22 February 2009.

6.  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 states the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty.  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:

* item 12a, enter the beginning date of the continuous period of AD for
issuance of this DD Form 214, for which a DD Form 214 was not previously issued
* item 12c, enter the amount of service this period, computed by subtracting item 12a from 12b 
* item 12f, enter the total amount of foreign service completed during the period covered by the DD Form 214

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his DD Form 214 should be corrected to show he served in Iraq from 23 May 2007 to April 2008.

2.  His DD Form 214 shows he entered active duty on 18 July 2008 and was REFRAD on 24 February 2009.  However, he provides orders and DFAS confirms he actually entered active duty on 22 May 2007.  His active duty during the period was 1 year, 9 months, and 03 days (0001 09 03).  Therefore, his 
DD Form 214 should be corrected.

3.  Although DFAS' confirmation indicates he was deployed only to Kuwait, his record shows he also served in Iraq.  Therefore, his DD Form 214 should be corrected to show his foreign service as Kuwait/Iraq from 3 August 2007 through 
15 April 2008 (8 months and 13 days).  Therefore, his DD Form 214 should be corrected accordingly.

4.  His orders show he was ordered to active duty effective 22 May 2007 for a period not to exceed 400 days, but there is no evidence he deployed to Iraq prior to 3 August 2007. 
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ____X___  ___X__ _  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is 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 current entry in item 12a of his DD Form 214 for the period ending 24 February 2009 and replacing it with "2007 05 22";

	b.  deleting the current entry in item 12c of his DD Form 214 for the period ending 24 February 2009 and replacing it with "0001 09 03"; 

	c.  deleting the current entry in item 12f of his DD Form 214 for the period ending 24 February 2009 and replacing it with the entry "0000  08  13"; and

	d.  deleting from item 18 of his DD Form 214 for the period ending 
24 February 2009 the entry "SERVICE IN IRAQ 20070818 - 20080411" and replacing it with the entry "SERVICE IN KUWAIT/IRAQ FROM 20070803 - 20080415."

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 showing he served in Iraq prior to 3 August 2007.




      _______ _  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)                                         AR20110003578



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ABCMR Record of Proceedings (cont)                                         AR20130004956



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