IN THE CASE OF:	  

		BOARD DATE:	        5 March 2009

		DOCKET NUMBER:  AR20080014107 


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 award of the Overseas Service Ribbon and the Operation Desert Storm Medal (i.e. Southwest Asia Service Medal (SWASM)).  

2.  The applicant states that he served in Germany and participated in Operation Desert Storm. 

3.  The applicant did not provide any additional documentary evidence in support of his request.  

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 for a period of 4 years on 7 May 1991.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 76C (Equipment Records and Parts Specialist).  The highest rank/grade he attained during his military service was private first class (PFC)/E-3.

3.  The applicant’s records further show that upon completion of MOS training, he was reassigned to Germany on 12 November 1991.  He was assigned to B Battery, 25th Field Artillery.

4.  On 31 January 1992, while in Germany, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for disobeying a lawful order to wear his Kevlar at Grafenwoehr, Germany, on or about 31 December 1991, and disobeying a lawful order from a noncommissioned officer in Grafenwoehr, Germany, on or about 22 January 1992. 

5.  On 2 March 1992, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him under the provisions of chapter 14 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) for a pattern of misconduct.  Subsequent to consulting legal counsel, the applicant’s immediate commander initiated separation action against him.  

6.  On 23 March 1992, the separation authority approved the applicant's request for discharge in accordance with chapter 14 of Army Regulation 635-200 and directed he receive an under honorable conditions (general) character of service. On 7 April 1992, the applicant was accordingly discharged.  The DD Form 214 he was issued at the time shows he was discharged for a pattern of misconduct with a character of service of under honorable conditions (general).  This form further confirms the applicant completed 11 months and 1 day of creditable active military service.

7.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows he was awarded the National Defense Service Medal, the Army Service Ribbon, and the Sharpshooter Marksmanship Qualification badge with Rifle Bar (M-16).  Item 13 does not show award of the Overseas Service Ribbon or the Southwest Asia Service Medal.

8.  Army Regulation 600-8-22 (Military Awards) shows that the Overseas Service Ribbon was established by the Secretary of the Army on 10 April 1981.  It is awarded to members of the U.S. Army for successful completion of overseas tours.  Effective 1 August 1981, all members of the Active Army, Army National Guard and Army Reserve in an active Reserve status are eligible for this award.  The ribbon may be awarded retroactively to those personnel who were credited with a normal overseas tour completion before 1 August 1981 provided they had an Active Army status as defined above on or after 1 August 1981.  Soldiers must be credited with a normal overseas tour completion according to Army Regulation 614–30 (Overseas Service).

9.  Army Regulation 614-30 (Overseas Service) prescribes the policies related to overseas permanent change of station moves.  This regulation also governs overseas tour lengths and credit for tour completion.  Table B-1 of the regulation lists overseas tour length and specifically tour length for Germany which is 36 months if accompanied by dependents and 24 months for all others.

10.  Army Regulation 614-30, Table 3-2 [Award of tour credit and adjustment of date eligible to return from overseas (DEROS)/date of return from overseas (DROS)] states, in pertinent part, that a Soldier will be credited with a completed tour and awarded a new DROS if he/she serves less than the normal prescribed overseas tour, and curtailment is for the convenience of the Government and through no request from or fault of the Soldier.

11.  Army Regulation 600-8-22 provides, in pertinent part, that the SWASM was established by Executive Order 12754, 12 March 1991, and is awarded to all members of the Armed Forces of the United States serving in Southwest Asia and contiguous waters or airspace there over, on or after 2August 1990 to 30 November 1995.  Southwest Asia and contiguous waters, as used herein, is defined as an area which includes the Persian Gulf, Red Sea, Gulf of Oman, Gulf of Aden, that portion of the Arabian Sea that lies north of 10 degrees N. latitude and west of 68 degrees E. longitude, as well as the total land areas of Iraq, Kuwait, Saudi Arabia, Oman, Bahrain, Qatar, and United Arab Emirates.  Members of the Armed Forces of the United States serving in Israel, Egypt, Turkey, Syria, and Jordan (including the airspace and territorial waters) between 17 January 1991 and 11 April 1991 will also be eligible for this award.  Members serving in these countries must have been under the command and control of U.S. Central Command or directly supporting military operations in the combat theater.  To be eligible, a service member must meet one or more of the following criteria:

	a.  Be attached to or regularly serving for one or more days with an organization participating in ground or shore (military) operations.


	b.  Be attached to or regularly serving for one or more days aboard a naval vessel directly supporting military operations.

	c.  Be actually participating as a crew member in one or more aerial flights directly supporting military operations in the areas designated above.

	d.  Be serving on temporary duty for 30 consecutive days or 60 nonconsecutive days.  These time limitations may be waived for people participating in actual combat operations.

12.  The Defense Manpower Data Center compiled the Desert Shield/Storm Data Base.  The primary Desert Shield/Storm file contains one record for each active duty member who participated in-theater between 2 August 1990 and 31 July 1991 and one record for each Reserve/National Guard member or retiree who was activated or federalized in response to Desert Shield/Desert Storm.  A Phase II file lists active duty personnel who served in-theater between 1 August 1991 and 31 December 1993.  

13.  The Desert Shield/Storm Data Base does not shows that the applicant served in Southwest Asia.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DD Form 214 should be corrected to show award of the Overseas Service Ribbon and the Southwest Asia Service Medal.  

2.  With respect to the Overseas Service Ribbon, the evidence of record shows that the applicant completed 4 months and 25 days of foreign/overseas service in Germany from 12 November 1991 to 6 April 1992.  He did not complete his overseas tour and was not credited with a tour.  Therefore, he does not meet the criteria for award of the Overseas Service Ribbon.

3.  With respect to the Southwest Asia Service Medal, there is no evidence in the applicant’s records and the applicant failed to provide any substantiating evidence that shows he served in Southwest Asia.  Therefore, he does not meet the criteria for award of the Southwest Asia Service Medal.

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.


															XXX
      ______________________
               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)                                         AR20080014107



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ABCMR Record of Proceedings (cont)                                         AR20080014107



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