IN THE CASE OF: BOARD DATE: 26 January 2016 DOCKET NUMBER: AR20150014091 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ____x___ ____x___ ____x___ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 26 January 2016 DOCKET NUMBER: AR20150014091 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 correction of all Department of the Army records of the individual concerned by amending item 13 of his DD Form 214 by deleting the Combat Action Badge and replacing it with the Combat Infantryman Badge; 2. The Board further determined 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 name. _____________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. IN THE CASE OF: BOARD DATE: 26 January 2016 DOCKET NUMBER: AR20150014091 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) to show his court ordered name change and the Combat Infantryman Badge (CIB). 2. The applicant states: a. item 1 (Name) of his DD Form 214 requires correction to show his court ordered name change, and b. item 13 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214 incorrectly shows he received the Combat Action Badge (CAB). He received the CIB for his service in Afghanistan as an infantryman; therefore, his discharge document should show the CIB not the CAB. 3. The applicant provides: * DD Form 214 (two copies) ending on 5 December 2012 * court order * Florida Driver’s License * social security card 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. On 30 October 2008, the applicant enlisted in the Regular Army. Item 1 (Name: Last, First Middle) of the DD Form 4/1 (Enlistment/Reenlistment – Armed Forces of the U.S.) prepared during his enlistment processing lists his name as Juan A. Z____. 3. All documents filed in the applicant's official military personnel file (OMPF) contain the name as shown on his enlistment documents. There is no evidence he submitted a request to change his name prior to his separation. 4. His Enlisted Record Brief (ERB) shows the following information – * military occupational specialty 11B (Infantryman) * service in Afghanistan from 13 February 2010 to 14 February 2011 * unit of assignment – 187th Infantry Regiment from 3 April 2009 through the date of his discharge * no CAB or CIB 5. A review of his OMPF shows no permanent orders were filed awarding him the CAB or the CIB. 6. On 12 May 2012, the applicant was honorably released from active duty (REFRAD) and transferred to the U.S Army Reserve Control Group (Reinforcement). He completed 3 years, 6 months, and 13 days of creditable active duty service. 7. The DD Form 214 prepared upon his REFRAD lists the name as shown on his enlistment documents and he digitally signed this document. His awards include the CAB. 8. The applicant provides State of Tennessee, Chancery Court, Order Granting Change of Name of Adult, which shows the deciding judge approved his petition to change his name from Juan A. Z____ to Andres J. S____ on 3 April 2012. He also provides a copy of his Florida driver’s license and social security card showing compliance with his court ordered name change. REFERENCES: 1. Army Regulation 635-5 (Separation Documents), in effect at the time, prescribed the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army. It established standardized policy for the preparation of the DD Form 214. It stated the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty. It provided a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge. The source documents used in the preparation of the DD Form 214 include enlistment contract, orders and the ERB. 2. Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards. a. The CIB is awarded to infantry officers and to enlisted and warrant officer personnel who have an infantry MOS. They must have served in active ground combat while assigned or attached to an infantry unit of brigade, regimental or smaller size. The recipient must be personally present and under fire. b. The requirements for award of the CAB are branch and MOS immaterial. Assignment to a combat arms unit or a unit organized to conduct close or offensive combat operations or performing offensive combat operations is not required to qualify for the Combat Action Badge. The Soldier must be performing assigned duties in an area where hostile fire pay or imminent danger pay is authorized. The Soldier must be personally present and actively engaging or being engaged by the enemy and performing satisfactorily in accordance with the prescribed rules of engagement. The Soldier must not be assigned or attached to a unit that would qualify the Soldier for the CIB or the Combat Medical Badge. c. Permanent awards of badges, except marksmanship qualification badges, identification badges, and the Physical Fitness Badge will be announce in permanent orders by commander authorized to make the award or permanent orders issued by Headquarters, Department of the Army. DISCUSSION: 1. The DD Form 214 is a record of active duty service at the time of release or discharge. The evidence of record confirms when the applicant enlisted he used the name Juan A. Z___ and he consistently used this name throughout his service. While the court order directing his name change is dated before his date of separation, there is no evidence he submitted a request to change his name through his chain of command. Therefore, his DD Form 214 correctly shows his name as shown on his enlistment documents. 2. For historical purposes, the Army has an interest in maintaining the integrity of its records. The data and information contained in those records should reflect the conditions and circumstances that existed at the time the records were created. In the absence of a material error or injustice, there is a reluctance to recommend that those records be changed. 3. A copy of this decisional document will be filed in his OMPF. This should serve to clarify any questions or confusion in regard to the difference in his name he now uses and his name recorded in his military record. 4. The evidence of record confirms the applicant held an infantry MOS and served with 187th Infantry Regiment in Afghanistan. However, his DD Form 214 lists the CAB and this badge is not authorized based on his MOS and unit of assignment. Notwithstanding the lack of permanent orders awarding either badge in his OMPF, it is reasonable to presume he earned the CIB and that the CAB was erroneously listed on his DD Form 214. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150014091 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150014091 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2