IN THE CASE OF:	  

		BOARD DATE:	  4 February 2014

		DOCKET NUMBER:  AR20130010050 


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 his service in Afghanistan.

2.  The applicant states he was told there is no record of his tour in Afghanistan by his local Department of Veterans Affairs Medical Center.

3.  The applicant provides his DD Form 214 and a DA Form 31 (Request and Authority for Leave).

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 records show he enlisted in the Regular Army on 20 September 2007.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 92A (Automated Logistical Specialist).

3.  On 24 March 2008, he was reassigned from the 3d Brigade Combat Team, 1st Infantry Division, Fort Hood, TX, to the 201st Brigade Support Battalion (BSB), also at Fort Hood, TX.

4.  On 5 August 2008, his commander issued a DA Form 4187 (Personnel Action) advancing him to private first class/E-3 effective 20 September 2008.  His unit is listed as the 201st BSB, Forward Operating Base (FOB) Fenty, Jalalabad, Afghanistan.

5.  His records also show he reenlisted on 21 September 2008.  His DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States) for this period shows the place of enlistment as Company A, 201st BSB.

6.  He provided a DA Form 31, dated 2 October 2008, that shows he was authorized 18 days of rest and recuperation (R&R) leave in Lyons, NY, from 11 October 2008 through 5 November 2008.  His organization is listed as Company A, 201st BSB, FOB Fenty, Jalalabad, Afghanistan.

7.  On 7 January 2009, his commander issued a DA Form 4187 changing his duty status from "present for duty (PDY)" to "confined by civil authorities (CCA)" in Lyons, NY, effective 0630 hours on 29 October 2008.

8.  Also on 7 January 2009, his commander issued a DA Form 4187 changing his duty status from "CCA" to "absent without leave (AWOL)" effective 0630 hours on 30 October 2008.

9.  On 23 January 2009, his commander issued a DA Form 4187 changing his duty status from "AWOL" to "PDY" at Fort Hood, TX, effective 0630 hours on 2 November 2008.

10.  On 15 June 2009, he pled guilty and was convicted by the Wayne County District Court, Lyons, NY, of third degree rape.  He was sentenced to time served and 3 years of probation.

11.  On 29 September 2009, he underwent a mental status evaluation at Fort Hood, TX.  He was cleared for administrative separation by his unit.

12.  On 5 November 2009, he was counseled by his immediate commander at Fort Hood, TX, regarding his civil conviction.

13.  On 23 November 2009, the Commander, Headquarters and Headquarters Company, 3d Brigade (Rear), 1st Infantry Division, Fort Hood, TX, notified the applicant of his intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 14, by reason of commission of a serious offense.  He was convicted by the Wayne County District Court, NY, of rape.

14.  On 25 November 2009 after the applicant had been advised of and exercised his rights, the separation authority approved his discharge under the provisions of Army Regulation 635-200, chapter 14, by reason of misconduct (civil conviction) with the issuance of an under honorable conditions (general) character of service.  On 18 December 2009, the applicant was accordingly discharged.

15.  His DD Form 214 shows he was discharged under honorable conditions (general) for misconduct (civil conviction) on 18 December 2009.  He completed 2 years, 2 months, and 26 days of active service and he had lost time from 29 October 2008 to 1 November 2008.  His DD Form 214 also shows in:

* item 12f (Foreign Service) – "0000  00  00"
* item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) – National Defense Service Medal and Army Service Ribbon
* item 18 (Remarks) – no service in a designated hostile fire pay/imminent danger pay (HFP/IDP) area

16.  An email from the Defense Finance and Accounting Service, dated 28 June 2013, confirmed the applicant:

* received HFP/IDP from 12 July to 15 November 2008
* was confined on 29 October 2008
* was AWOL from 30 October to 1 November 2008
* returned to duty on 2 November 2008
* was in a suspended status from 2 November to 27 December 2009
* was discharged on “28” December 2009

17.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  Chapter 2 contains guidance for preparation of the DD Form 214.  It states extreme care is used when completing item 12 (Record of Service) since post-service benefits, final pay, retirement credit, and so forth are based on this information.  Item 12f is obtained from the Enlisted Record Brief and shows the total amount of foreign service completed during the period covered in by the DD Form 214.  Additionally, for an active duty Soldier deployed with his or her unit during their continuous period of active service, the statement "SERVICE IN (name of county deployed) FROM (inclusive dates for example, YYYYMMDD-YYYMMDD)" is entered in item 18.

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

	a.  The Global War on Terrorism Service Medal is authorized for award to members of the Armed Forces of the United States who participated in Global War on Terrorism operations outside of the designated areas of eligibility designated for award of the Global War on Terrorism Expeditionary Medal, Afghanistan Campaign Medal, or Iraq Campaign Medal.  All Soldiers on active duty on or after 11 September 2001 to a date to be determined, having served 30 consecutive or 60 nonconsecutive days are authorized the Global War on Terrorism Service Medal.

	b.  The Afghanistan Campaign Medal is awarded to members who served in direct support of Operation Enduring Freedom.  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 11 September 2001 to a future date to be determined by the Secretary of Defense or the cessation of Operation Enduring Freedom.  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-30 November 2001)
* Consolidation I (1 December 2001-30 September 2006)
* Consolidation II (1 October 2006-30 November 2009)
* Consolidation III (1 December 2009-30 June 2011)
* Transition I (1 July 2011-date to be determined)

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his DD Form 214 does not show his service in Afghanistan.  However, he did not specify his dates of service in Afghanistan and his available records do not clearly and accurately indicate the exact dates of arrival to and departure from Afghanistan:

	a.  His pay records show he received HFP/IDP beginning on 12 July 2008.  His unit published orders in August 2008 promoting him in theater on 20 September 2008 and he also reenlisted in theater on 21 September 2008.  He also took R&R leave from Afghanistan.  It is clear that he served in Afghanistan.  However, the only date of arrival in theater is taken from his pay records.  As such, it is reasonable to presume the date of arrival is 12 July 2008, the date he began receiving HFP/IDP.

	b.  His date of departure is more problematic.  He departed on R&R leave from Jalalabad, Afghanistan, on 11 October 2008 and should have terminated on 5 November 2008.  While on leave, the applicant was confined by civil authorities on 28 October 2008 and he was reported AWOL on 29 October 2008.  He returned to duty at Fort Hood, TX, on 2 November 2008.  It is unclear if he returned to Afghanistan.

	c.  In the absence of additional documents confirming he did, in fact, return to Afghanistan after his arrest and confinement, it must be presumed that he did not return.  Furthermore, in the absence of additional information (redeployment orders, travel voucher, or manifest report), it also must be presumed that the date he departed on R&R leave is the date he departed Afghanistan.

	d.  Based on the available evidence, his DD Form 214 should be corrected to show his foreign service and deployment to Afghanistan from 12 July 2008 through 11 October 2008, a period of 3 months.

2.  This period of service entitles him to award of the Afghanistan Campaign Medal with one bronze service star for participation in the Consolidation II campaign and correction of his DD Form 214 to show this award.

3.  He served a qualifying period of service for award of the Global War on Terrorism Service Medal which is not shown on his DD Form 214 and is entitled to correction of his DD Form 214 to show this award.

BOARD VOTE:

____x___  ____x___  ___x_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

* deleting the entry "0000  00  00 from item 12f of his DD Form 214 and adding the entry "0000  03  00"
* adding award of the Afghanistan Campaign Medal with one bronze service star and Global War on Terrorism Service Medal to item 13 of his DD Form 214
* adding the statement "SERVICE IN AFGHANISTAN FROM 20080712-20081011" to item 18 of his DD Form 214



      ____________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)                                         AR20130010050



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ABCMR Record of Proceedings (cont)                                         AR20130010050



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