BOARD DATE: 16 May 2017 DOCKET NUMBER: AR20160000375 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x_____ ___x_____ ____x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 16 May 2017 DOCKET NUMBER: AR20160000375 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. _____________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. BOARD DATE: 16 May 2017 DOCKET NUMBER: AR20160000375 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: * award of the Combat Infantryman Badge for his service in Iraq * correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 4 April 2004 to show: * the Combat Infantryman Badge * military education not carried over from his earlier DD Form 214 for the period ending 2 April 2001 * placement on the Permanent Disability Retired List (PDRL) instead of the Temporary Disability Retired List (TDRL) 2. The applicant states, in effect: a. He was assigned to the 1st Battalion, 46th Infantry Regiment, from April to September 2003. He asserts he should have been awarded the Combat Infantryman because: * he was the gunner for his Company Commander's Bradley Fighting Vehicle (BFV) while in Iraq * the first conflict in which he participated was when his unit raided a city looking for two missing Soldiers; they found some belongings for one Soldier * after completing the mission, they pulled onto a road to conduct an after-action review; during the review, the enemy fired a rocket-propelled grenade (RPG), hitting a wall * they immediately engaged and attempted, without success, to locate the enemy * another time, they were traveling down a road at night; the enemy fired an RPG at his BFV, but missed * the Company Commander called in air support, and Apache helicopters swept the area with gunfire; they were unable to locate the enemy * later, he was traveling in the command BFV when his commander noticed people trying to remove weapons from an abandoned enemy vehicle; he was ordered to fire a warning shot, and as he fired, the people fled * he had to stop firing when his commander was accidently killed after making contact with a live power wire b. Following his retirement for physical disability, he was moved from the TDRL to the PDRL. He asserts item 28 (Narrative Reason for Separation) should be amended accordingly. 3. The applicant provides: * letter, dated 27 October 2008 * DD Form 214 for the period ending 2 April 2001 * DD Form 214 for the period ending 4 April 2004 * Order Number D222-09, dated 9 August 2012 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. Regarding his request for the award of the Combat Infantryman Badge: a. Paragraph 2-5 of Army Regulation (AR) 15-185 (ABCMR), the regulation under which this Board operates, states the Board will not consider any application if it determines the applicant has not exhausted all available administrative remedies. The evidence indicates his request is premature. (1) He first requested the Combat Infantryman Badge in ABCMR Docket Number AR20060007162, but on 7 December 2006, his case was administratively closed because he had not provided any evidence confirming his service in Iraq, as well as what duties he had performed. (2) In 2007, he submitted documentation to support of his earlier petition, to include his DD Form 214, and in ABCMR Docket Number AR20070013495, dated 25 March 2008, the Board took up a portion of his earlier request related to his foreign service in Iraq. However, the Board did not address his request for the Combat Infantryman Badge. (3) On 17 January 2012, he again applied to the Board for the Combat Infantryman Badge. He was informed his request would not receive Board action because he had not exhausted all available administrative remedies (i.e., he needed to first submit his request to the U.S. Army Human Resources Command (HRC)). He was further told he could resubmit to the ABCMR in the event HRC denied his request. (4) In an email, dated 8 May 2017, an official from HRC verified the applicant had sent a July 2012 inquiry regarding the award of the Combat Infantryman Badge, but when asked to provide additional information, there was no further response. b. Given the above-cited information, paragraph 2-5 still applies, and the applicant must first request this award from HRC. He is advised to send an application to Commander, HRC, Army Decorations Board, ATTN: AHRC-PDP-A, 1600 Spearhead Division Avenue, Fort Knox, KY 40122-5408. (1) In sending his request, the HRC website indicates he should include documentation such as witness statements, wartime chain of command endorsements, awards (e.g., a Bronze Star Medal for valor) that would show he engaged the enemy in active ground combat, along with any other documentation that could substantiate eligibility. (2) More information is available on the HRC website: https://www.hrc.army.mil/content/Combat%20Infantry%20Badge%20CIB c. Based on the foregoing, his request for the award of the Combat Infantryman Badge will not be further addressed in this Record of Proceedings. 3. The applicant enlisted in the Regular Army (RA) on 25 February 1992. 4. Orders Number 304-01, dated 30 October 2000, issued by U.S. Army Europe, showed the applicant was directed to separate from the RA on 2 April 2001. 5. On 15 February 2001, he enlisted in the U.S. Army Reserve (USAR). 6. The applicant's separation orders (Orders Number 304-01, dated 30 October 2000) were amended on 15 February 2001 to reflect his assignment to a USAR unit after his separation. 7. He was honorably discharged from the RA on 2 April 2001 due to completion of required active service. His DD Form 214 shows he completed 9 years, 5 months, and 7 days of net active creditable service. a. Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) lists the following: * Army Achievement Medal * Army Good Conduct Medal (2nd Award) * National Defense Service Medal * Armed Forces Expeditionary Medal * Kosovo Campaign Medal * Noncommissioned Officer (NCO) Professional Development Ribbon * Army Service Ribbon * Overseas Service Ribbon * Army Superior Unit Award * Expert Infantryman Badge * Driver and Mechanic Badge with Driver-T Component Bar * North Atlantic Treaty Organization (NATO) Medal with two bronze service stars b. Item 14 (Military Education) reflects: * German Headstart Course, July 1992 * Combat Lifesaver Course, August 1992 * Equal Opportunity Course, August 1992 * Driver's Training Course, September 1992 * Fighting Vehicle Infantryman Course, June 1992 * Infantryman Course, June 1992 * Primary Leadership Development Course, November 1998 * Bradley Crew Evaluator Course, January 1999 * Unit Conduct of Fire Trainer (M2/M3) Bradley Advanced Matrix, January 1999 * Bradley Crew Evaluator Training Course, January 1999 * Operator Training M2A2 ODS (Operation Desert Storm) BFV Training Course, November 1999 8. Orders Number 02-288-00004, dated 15 October 2002, issued by Headquarters, 104th Division (Institutional Training), honorably discharged the applicant from the USAR, effective 14 February 2002. 9. The applicant enlisted in the RA on 7 April 2003. 10. He served in Iraq from 1 May to 17 October 2003. 11. On 1 December 2003, a medical evaluation board (MEB) determined the applicant failed medical retention standards for two medical conditions. His case was referred to a physical evaluation board (PEB) for a fitness determination. 12. In or around January 2004, a PEB determined the applicant was unfit for continued military service. The PEB presumably recommended placement on the TDRL with a combined disability rating of 30 percent. 13. Orders Number 039-0005, dated 8 February 2004, issued by Headquarters, Walter Reed Army Medical Center (WRAMC), reassigned him to the U.S. Army Transition Center, WRAMC. The orders also reflected him as being retired on 4 April 2004 and placed on the TDRL effective 5 April 2004 with a combined disability rating of 30 percent. 14. A review of his official military personnel file (OMPF) reveals no records of training completion during his second enlistment (7 April 2003 through 4 April 2004). 15. He was honorably retired on 4 April 2004 and he was placed on the TDRL on 5 April 2004. His DD Form 214, as amended by a DD Form 215 (Correction to DD Form 214), dated 27 October 2008, shows he completed 11 months and 28 days of net active creditable service. a. Item 13 lists: * Army Good Conduct Medal (2nd Award) * National Defense Service Medal * Armed Forces Expeditionary Medal * Kosovo Medal * Iraq Campaign Medal with one bronze service star * Global War on Terrorism Service Medal * NCO Professional Development Ribbon * Army Service Ribbon * Overseas Service Ribbon * NATO Medal * Army Superior Unit Award * Expert Infantryman Badge * Driver and Mechanic Badge with Driver-W Component Bar b. Item 14 shows: Equal Opportunity Management Course, 1999; Primary Leadership Development Course, 1998; and Combat Lifesaver Course, 1983 16. At some point prior to November 2005, a PEB reevaluated the applicant's medical conditions and determined he should be removed from the TDRL. The PEB further recommended separation with severance pay at a combined disability rating of 10 percent. 17. Orders Number D307-07, dated 3 November 2005, issued by the U.S. Army Physical Disability Agency (USAPDA), removed the applicant from the TDRL effective 3 November 2005. He was discharged with severance pay and given a combined disability rating of 10 percent. 18. In ABCMR Docket Number AR20070013495, dated 25 March 2008, the Board directed the issuance of a DD Form 215 to show the following corrections to his DD Form 214, ending 4 April 2004: * item 12a (Date Entered AD (Active Duty) This Period), delete: "1993/06/25," replace with "2003/04/07" * item 12c (Net Active Service This Period), delete: "0010/09/10," replace with "0000/11/28" * item 12d (Total Prior Active Service), delete: "0000/00/00," replace with "0009/05/07" * item 12e (Total Prior Inactive Service), delete: "0000/00/00," replace with "0001/02/02" * item 12f (Foreign Service), delete: "0000/00/00," replace with "0000/05/00" * item 13, add Iraq Campaign Medal with one bronze service star and Global War on Terrorism Service Medal * item 18 (Remarks), add "SERVICE IN IRAQ FROM 20030501 TO 20031001" 19. On 27 January 2012, the Deputy Assistant Secretary of the Army (DASA) (Review Boards) approved the recommendation of the Department of Defense Physical Disability Board of Review to recharacterize his separation as a permanent disability retirement (i.e., placement on the PDRL). The DASA also directed he receive a combined disability rating of 30 percent effective the date of his original medical separation for disability with severance pay. 20. Orders Number D222-08, dated 9 August 2012, issued by USAPDA, revoked Orders Number D307-07, dated 3 November 2005. 21. Orders Number D222-09, dated 9 August 2012, issued by USAPDA, removed the applicant from the TDRL effective 3 November 2005 and placed him on the PDRL effective 4 November 2005. REFERENCES: 1. AR 635-5 (Personnel Separations - Separation Documents), in effect at the time, prescribes policies and procedures for the completion of the DD Form 214. Paragraph 2-1 (Preparing the DD Form 214) stated the DD Form 214 provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge. a. Item 13 was to list awards and decorations for all periods of service. b. Item 14 showed all formal in-service (full-time attendance) training courses completed during the period of service covered by the DD Form 214. The entry will include course title, the length in weeks, and the year completed. c. Soldiers removed from the TDRL will not have a DD Form 214 prepared to reflect that change in status. 2. AR 635-40, in effect at the time, established the Army PDES and set forth policies, responsibilities, and procedures that governed the evaluation for physical fitness of Soldiers who might be unfit to perform their military duties because of physical disability. a. The TDRL was used in the nature of a "pending list." By law, Soldiers could be placed on the TDRL for a period of no more than 5 years. The PEB recommends placement on the TDRL when it determined: * the Soldier was unfit for continued military service * their condition(s) were considered to either be temporary or unstable in nature * at the time of placement on the TDRL, they were eligible for a disability rating of 30 percent or more b. Soldiers on the TDRL underwent periodic medical examinations which determined if the condition(s) had stabilized. If considered stable, a PEB would then, prior to the expiration of the 5-year time limit, make a final rating determination. c. If the PEB found the condition was still unfitting, it then made an assessment as to an appropriate disability rating. If the rating was 30 percent or more, the Soldier could be placed on the PDRL. If less than 30 percent, the Soldier could be separated with severance pay. DISCUSSION: 1. Regarding the applicant's request to show all of his military training on his DD Form 214 for the period ending 4 April 2004, the regulation states item 14 will only reflect qualifying training that was completed during the period of the report (i.e., 7 April 2003 through 4 April 2004). a. His DD Form 214 currently lists training he completed in an earlier enlistment. It appears that those entries were placed on his final DD Form 214 due to confusion over the date he had entered active duty that period when the DD Form 214 was originally created. The DD Form 214 was later corrected to show he had entered active duty that period on 7 April 2003, but the training received during a period covered by another DD Form 214 was not deleted. Notwithstanding the regulatory guidance, it is the general policy of the Board not to cause an applicant to be worse off than he or she would have been had the Board not acted on his or her case. Thus, as a matter of equity, it would be appropriate to leave the current entries in item 14. b. His OMPF is void of any evidence he completed training during the period of the final DD Form 214. As such, there does not appear to be a basis for making corrections to item 14 of this form. 2. As to replacing the entry in item 28 to reflect his placement on the PDRL, the regulation requires the DD Form 214 to show the basis for separation at the time of the event. He was not removed from the TDRL and placed on the PDRL until November 2005, more than a year after he separated. a. When the PEB determines that a member's disabilities or conditions are not sufficiently stable for final adjudication, the member's disposition would be placement on the TDRL. A member's disability rating and status could change while on the TDRL. In the applicant's case, in 2004, the PEB determined his conditions were not sufficiently stable for final adjudication. That is why he was placed on the TDRL. b. In 2005, he was considered by a TDRL PEB that recommended his separation with entitlement to severance pay. The TDRL PEB determined that his conditions were considered sufficiently stable for final adjudication and made a recommendation regarding his final disposition. c. In 2012, his case was reviewed and a determination was made that he should have permanently retired vice been separated with severance pay. His placement on the PDRL was made retroactive to 2005 - the date he was medically separated with severance pay. He has been issued orders that confirm his placement on the PDRL. d. A DD Form 214 is a summary of a Soldier's most recent period of continuous active service. A DD Form 214 is not prepared for Soldiers who are removed from the TDRL, regardless of whether they are discharged or retired for permanent disability. His DD Form 214 correctly shows his temporary retirement and placement on the TDRL as of 4 April 2004. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160000375 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160000375 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2