IN THE CASE OF:	  

	BOARD DATE:	  17 July 2008

	DOCKET NUMBER:  AR20080008814 


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, that item 12b (Separation Date This Period) on his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to show 26 December 2004; that item 12f (Foreign Service) be corrected to show he served 10 months and 19 days in Iraq; and that item 
13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) be corrected to show award of the Armed Forces Reserve Medal, the Overseas Service Ribbon, the Iraq Campaign Medal, and the Global War on Terrorism Expeditionary Medal (GWOTEM).  In the alternative, he requests reinstatement in the Army without any lost time.

2.  The applicant states, in effect, that he wants his discharge date changed to reflect the date in his contract because the Defense Finance and Accounting Service has requested that he pay $13,000 back to the military (Montgomery GI Bill and enlistment bonus).  He believes the change is warranted because his release was motivated by his unit, not him.  He contends that he never wanted to end his service, that he was attempting to file a complaint, and that once his unit discovered he was attempting to file a complaint they started his separation action.

3.  The applicant provides a letter, dated 25 June 2007, from the Army Discharge Review Board (ADRB) and a copy of his DD Form 214 for the period ending 30 December 2003.


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 U.S. Army Reserve (USAR) on 21 December 1998 for a period of 8 years and an enlistment bonus.  Records show he also enrolled in the Montgomery GI Bill.  On 12 February 2003, he was ordered to active duty in support of Operations Noble Eagle and Enduring Freedom.  Records show he served in Kuwait from on or about April 2003 to October 2003 (his inclusive dates of service in Kuwait are not available).

3.  On 22 October 2003, charges were preferred against the applicant for missing movement through design and disobeying a lawful order.  On 28 October 2003, he consulted with counsel and voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  On an unknown date in October 2003, the applicant was transferred to Iraq until approximately 10 December 2003 (his inclusive dates of service in Iraq are not available).  On 30 December 2003, he was discharged under other than honorable conditions under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.

4.  Item 12b of the applicant’s DD Form 214 shows the entry, “2003 12 30.”  Item 12f of his DD Form 214 shows the entry, “00 00 00.”  Item 13 of his DD Form 214 shows the Army Reserve Components Achievement Medal, the National Defense Service Medal (2nd Award), the Armed Forces Reserve Medal with “M” Device, and the Army Service Ribbon as authorized awards.  Item 18 (Remarks) does not show any deployments.  Item 29 (Dates of Time Lost During This Period) on his DD Form 214 shows the entry, “NONE.”

5.  On 25 June 2007, the ADRB upgraded the applicant’s discharge to honorable and changed his narrative reason for separation to Secretarial Authority.

6.  Army Regulation 600-8-22 (Military Awards), in pertinent part, provides for award of the Armed Forces Reserve Medal.  It is awarded for honorable and satisfactory service as a member of one or more of the Reserve Components of the Armed Forces of the United States for a period of 10 years.  The conditions for award of the Armed Forces Reserve Medal include requirements for such service to be completed within 12 consecutive years and service in a regular component of the Armed Forces, tenure in elected state office, tenure as a member of a legislative body of the United States or a state, and service as a judge of a court of record of the United States, a state or territory or District of Columbia is excluded from credit to ward this award but does not constitute a break in service.  

7.  As an exception to the above rule, when the “M” Device is authorized to be worn on the Armed Forces Reserve Medal to denote service by Reserve Component personnel who volunteered or were called to active duty during a mobilization or a contingency designated by the Secretary of Defense, the Armed Forces Reserve Medal may be awarded for a less-than-10-year period.

8.  A Frequently Asked Questions document from the Human Resources Command (HRC), Military Awards Branch, updated on 25 June 2007, contains examples to show Soldiers’ eligibility for awards while deployed to Iraq.  The document states “Question:  Can I be awarded the OSR [Overseas Service Ribbon] for being in Iraq?  Answer:  Soldiers are authorized to be awarded the OSR upon completion of a ‘normal overseas tour as IAW [in accordance with] AR [Army Regulation] 614-30.’  If a Soldier is credited with tour completion for serving in Iraq, yes they can receive the OSR.”

9.  The document states, “Question:  How long do I have to serve in Iraq or Afghanistan to be awarded the OSR?  Answer:  Overseas tour credit is outlined in Army Regulation 614-30 (Overseas Service).  Provided is a clarification statement the proponent to Army Regulation 614-30 has provided our office:  ‘Soldiers who serve a minimum of 11 cumulative months or 9 continuous months in a TCS/TDY [temporary change of station/temporary duty] status get credit for a completed short tour.  Your reference is AR [Army Regulation] 614-30 (23 Sep 04), Table 3-2, rules 5 and 7.  Iraq and Afghanistan are considered isolated areas where tour lengths have not been established by DOD [Department of Defense]; therefore, the Army gives equivalent credit for periods of TCS/TDY.  Also, since there is no official established DOD tour length, Soldiers cannot serve in Iraq in PCS [permanent change of station] status.  To determine the overseas tour lengths refer to Table 1, Appendix Q, Joint Federal Travel Regulations, Volume 1.  You will not find a tour length for Afghanistan or Iraq.’”

10.  Army Regulation 600-8-22 shows that the Overseas Service Ribbon was established by the Secretary of the Army on 10 April 1981.  The regulation states, in pertinent part, that effective 1 August 1981, all members of the Active Army, Army National Guard, and Army Reserve in an active Reserve status are eligible for the award for successful completion of overseas tours. 

11.  Army Regulation 600-8-22 states that individuals authorized the Iraq Campaign Medal must have served in direct support of Operation Iraqi Freedom (OIF).  The area of eligibility encompasses all land area of the country of Iraq, and the contiguous water area out to 12 nautical miles, and all air spaces above the land area of Iraq and above the contiguous water area out to 12 nautical miles.  The Iraq Campaign Medal period of eligibility is on or after 19 March 2003 to a future date to be determined by the Secretary of Defense or the cessation of OIF.

12.  Army Regulation 600-8-22 states that the GWOTEM is authorized for award to members of the Armed Forces of the United States who deployed abroad for service in the Global War on Terrorism operations on or after 11 September 2001 to a date to be determined.  Service members must be assigned, attached, or mobilized to a unit participating in designated operations for 30 consecutive days or 60 nonconsecutive days in the AOE, or meet one of the following criteria:

	a.  be engaged in actual combat against the enemy and under circumstances involving grave danger of death or serious bodily injury from enemy action, regardless of time in the AOE, 

	b.  is killed, wounded or injured requiring medical evacuation from the AOE while participating in the designated operation, regardless of time, or 

	c.  service members participating as a regularly assigned air crew member flying sorties into, out of, within, or over the AOE in direct support of Operations Enduring Freedom and/or Iraqi Freedom are eligible to qualify for award of the GWOTEM.  Each day that one or more sorties are flown in accordance with these criteria will count as one day toward the 30 consecutive or 60 nonconsecutive day requirement.

13.  Initial award of the GWOTEM is limited to service members deployed abroad in Operations Enduring Freedom and Iraqi Freedom in the following designated specific geographic areas of eligibility (AOE): Afghanistan, Algeria, Bahrain, Bosnia-Herzegovina, Bulgaria (Bourgas), Chad, Crete, Cyprus, Diego Garcia, Djibouti, Egypt, Eritrea, Ethiopia, Georgia, Hungary, Iran, Iraq, Israel, Jordan, Kazakhstan, Kenya, Kosovo (only specific GWOT operations not associated with operations qualifying for the Kosovo Campaign Medal), Kuwait, Kyrgyzstan, Lebanon, Mali, Mauritania, Niger, Oman, Pakistan, Philippines, Qatar, Romania (Constanta), Saudi Arabia, Somalia, Syria, Tajikistan, Turkey, Turkmenistan, Uganda, United Arab Emirates, Uzbekistan, Yeman, that portion of the Arabian Sea north of 10 degrees north latitude and west of 68 degrees longitude, Bab El Mandeb, Gulf of Aden, Gulf of Aqaba, Gulf of Oman, Gulf of Suez, that portion of the Mediterranean Sea east of 28 degrees east longitude and boarding and searching vessel operations, Persian Gulf, Red Sea, Strait of Hormuz, and Suez Canal.

14.  Army Regulation 600-8-22 states that the Global War on Terrorism Service Medal (GWOTSM) is authorized for award to members of the Armed Forces of the United States who have participated in the Global War on Terrorism (GWOT) operations outside of the designated areas of eligibility (AOE), on or after 11 September 2001 to a future date to be determined.

15.  Army Regulation 635-5 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.  The regulation states, in pertinent part, that the total amount of foreign service completed during the period covered by the DD Form 214 will be entered in item 12f.  The regulation also states, in pertinent part, that the country and dates of deployment for an active duty Soldier deployed with his or her unit during their continuous period of active service will be shown in item 18 on the DD Form 214.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions that his release was motivated by his unit, that he never wanted to end his service, and that once his unit discovered he was attempting to file a complaint they started his separation action, relate to evidentiary and procedural matters that could have been addressed and conclusively adjudicated in a court-martial appellate process.  However, the applicant voluntarily requested discharge in lieu of trial by court-martial.

2.  Although the applicant requests that item 12b on his DD Form 214 be changed to show he separated on 26 December 2004, evidence of record shows he was discharged on 30 December 2003 after he voluntarily requested discharge in lieu of court-martial.  Therefore, there is no basis for granting his request to amend item 12b on his DD Form 214 or for reinstatement in the Army.

3.  Evidence of record shows the applicant served in Kuwait and Iraq.  However, his inclusive dates of service are not available.  Therefore, there is insufficient evidence with which to amend item 12f on his DD Form 214; however, an entry should be made in item 18 on his DD Form 214.

4.  The applicant did not serve a period of qualifying service for the Armed Forces Reserve Medal.  Therefore, there is insufficient evidence on which to base award of the Armed Forces Reserve Medal in this case based upon the normal criteria.  However, his DD Form 214 shows the Armed Forces Reserve Medal with “M” Device.

5.  Since the applicant did not serve a minimum of 11 cumulative months or 9 continuous months in Iraq, there is no basis for granting his request for award of the Overseas Service Ribbon.

6.  Based on the applicant’s service in Iraq, he is eligible for award of the Iraq Campaign Medal.

7.  Based on the applicant’s service in Kuwait, he is eligible for award of the GWOTEM.

8.  The applicant served a period of qualifying service for award of the GWOTSM.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___xx___  ___xx___  ___xx___  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 all Department of the Army records of the individual concerned be corrected by:

	a.  adding the Iraq Campaign Medal, the GWOTEM, and the GWOTSM to item 13 on his DD Form 214; and 

	b.  adding the entry, “Service in Kuwait/Iraq, dates unknown” in item 18 on his DD Form 214.
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 amending items 12b and 12f on his DD Form 214.  The Board also recommends denial of his request for 
reinstatement in the Army and award of the Armed Forces Reserve Medal and the Overseas Service Ribbon.



_________xxxx____________
       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)                                         AR20080008814





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ABCMR Record of Proceedings (cont)                                         AR20080008814



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