IN THE CASE OF:	  

		BOARD DATE:	  	  18 SEPTEMBER 2008

		DOCKET NUMBER:  AR20080012147


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 submits two DD Forms 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552) for periods of service ending on 10 January 1988 and 1 September 1993 in which he requests, in effect, award of overseas service tour credit and adjustment in accordance with Army Regulation 614-30 (Overseas Service), Table 3-2 (Award of Tour Credit and Adjustment of DEROS/DROS), rule 11, and Table 3-3 (Creditable Periods of Overseas Service), rule 2; and award of the Overseas Service Ribbon (OSR).

2.  The applicant states that his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows no foreign service and his records show he had 16 months, plus he was awarded an OSR before being sent home on excess leave in 1992.  He also states that he came home on a compassionate reassignment from his first tour in Germany due to his father's illness and that his DD Form 214 shows 2 years, 5 months, and 20 days of service for this time.  He states that he would have completed his overseas tour, but he received a compassionate reassignment back to the U.S. due to his father's illness and later death.  He concludes that he thought he had his OSR according to the records; his DA Form 2-1 (Personnel Qualification Record) shows he was awarded the OSR and he feels that he deserves it.

3.  The applicant provides copies of his DD Form 214 for the period ending 10 January 1988 and two pages of his DA Form 2-1 in support of his applications.

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 military service records show that he enlisted in the Regular Army on 27 March 1984.  He completed basic training and advanced individual training and was awarded the military occupational specialty 13B (Cannon Crewmember).

3.  The applicant's DD Form 214 for the period ending on 10 January 1988 shows that he was honorably separated and transferred to the U.S. Army Reserve Control Group (Reinforcement) at the expiration of his term of service.  His DD Form 214 shows that he served a total of 3 years, 9 months, and 14 days of creditable active military service during this period.  The highest rank he achieved was sergeant/pay grade E-5.

4.  Item 12f (Foreign Service) of the applicant's DD Form 214 for the period ending on 10 January 1988 shows 5 months and 27 days of foreign service during this term of service.

5.  Item 5 (Overseas Service) of the applicant's DA Form 2-1 for his initial period of service shows foreign service in Germany from 1 October 1985 through 27 March 1986 for a period of 6 months and the normal tour completion (NTC) entry "No."

6.  Item 9 (Awards, Decorations and Campaigns) of the applicant's DA Form 2-1 for his initial period of service does not show award of the OSR.

7.  The applicant's original DD Form 214 for the period ending on 1 September 1993 was voided as a result of a review and determination by the Army Discharge Review Board (ADRB).  On 8 February 2006, the ADRB upgraded the characterization of the applicant's service to fully honorable.  The ADRB decision states, "The evidence in this case supports a conclusion that the overall length and quality of his service and the time that has elapsed since his discharge mitigated the discrediting entry in his service record.  A change in the reason for discharge is not authorized under Federal statute."

8.  The applicant's reissued DD Form 214 for the period ending on 1 September 1993 shows that he was discharged in the rank of private/pay grade E-1 as a result of a special court-martial with a characterization of honorable.  His DD Form 214 shows that he served a total of 2 years, 5 months, and 20 days of creditable active military service with 439 days of excess leave during this period.

9.  Item 12f of the applicant's reissued DD Form 214 for the period ending on 1 September 1993 does not show any foreign service during this term of service.

10.  Item 18 (Remarks) of the applicant's reissued DD Form 214 for the period ending on 1 September 1993 states "characterization of service upgraded on 9 February 2006 following application dated 23 May 2005."

11.  Item 5 of the applicant's DA Form 2-1 which incorporates his prior period of service shows the previously-recorded foreign service in Germany from 1 October 1985 through 27 March 1986 for a period of 6 months and the normal tour completion (NTC) entry "N"; and foreign service in Germany from 15 January 1991 through 22 May 1992 for a period of 16 months, the normal tour completion (NTC) entry is blank.

12.  Item 9 of the applicant's DA Form 2-1 which incorporates his prior period of service shows award of the OSR; however, it is not clear which period of overseas service is represented by the entry.

13.  There is no evidence that the applicant successfully completed any overseas tours in accordance with normal overseas tour completion credit as defined by Army Regulation 614-30.

14.  Army Regulation 614-30 prescribes policies pertinent to overseas permanent change of station moves, overseas tour lengths, overseas tour curtailments, time-on-station, eligibility for overseas service criteria, voluntary and involuntary overseas tour extension, the Overseas Tour Extension Incentive Program, and consecutive overseas tours.

15.  Table 3-2, rule 11, of Army Regulation 614-30 provides that if a Soldier serves in an overseas assignment and is temporarily absent for reasons other than TCS/TDY and remains for more than 30 days, then credit with the first 30 days absent from OCONUS and add to current DEROS the amount of time absent in excess of 30 days (refer to Table 3-3, rule 2).  This includes time spent in CONUS on leave and/or attached to a CONUS activity pending decision on a personnel action, for example, a compassionate reassignment or hardship discharge.  Long tour areas are where tour lengths are at least 36 months accompanied and 24 months unaccompanied.  Areas where tour lengths are less than 36 months accompanied and 24 months unaccompanied are defined as short tour areas.

16.  Table 3-3, rule 2, of Army Regulation 614-30 provides that if a Soldier serving an overseas tour is temporarily absent from the permanent duty station more than 30 days, for reason other than TCS/TDY, then the period of creditable time stops after 30 days, then starts again on the day of departure from CONUS/
OCONUS port of debarkation en route back to the permanent duty station and does not include recorded time lost while assigned to an overseas command or periods of leave taken while en route to, from, or between overseas commands.

17.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that an Overseas Service Ribbon is awarded to members of the U.S. Army for successful completion of overseas tours in accordance with normal overseas tour completion credit as defined by Army Regulation 614-30.

18.  Table 5-2 (Instructions for Recording Entries on DA Form 2-1), of Army Regulation 600-8-104 (Military Personnel Information Management/Records), provides, in pertinent part, that if item 5 NTC column of the DA Form 2-1 shows completion of only one overseas service tour in an area for which another service medal was not authorized, enter OS–SVC–RBN–1; if item 5 NTC column shows completion of more than one overseas tour in areas for which another service medal was not authorized during the time period of any of the tours, enter OSR annotated with the numeral that represents the completed tour; if item 5 shows completion of one overseas tour for which another service medal was authorized, the OSR is not authorized.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's requests for award of overseas service tour credit and adjustment and award of the OSR were carefully considered and determined to be without merit.

2.  The applicant states that he did not complete his initial overseas service due to a compassionate reassignment and requests overseas service tour credit and adjustment under the provisions of Army Regulation 614-30, Table 3-2, rule 11; however, rule 11 specifies that credit may be applied for temporary absence pending a decision on a compassionate reassignment.  The applicant did not return to Germany; therefore, he does not qualify for overseas service tour credit and adjustment under this provision.

3.  There is no evidence that the applicant successfully completed any overseas tours in accordance with normal overseas tour completion credit as defined by Army Regulation 614-30.  Therefore, he is not entitled to correction of his records to show foreign service tour credit and adjustment or award of the OSR.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__X____  ___X____  ___X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that 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.
ABCMR Record of Proceedings (cont)                                         AR20080012147



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ABCMR Record of Proceedings (cont)                                         AR20080012147



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