RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         22 August 2006
      DOCKET NUMBER:  AR20060000779


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. Jerome L. Pionk               |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his separation document (DD
Form 214) be corrected to show his correct retirement date, and by adding
the Korea Defense Service Medal (KDSM).

2.  The applicant states, in effect, that in order to qualify for certain
State benefits, the effective date on his DD Form 214 must match his
retirement date of
31 January 1991 and the date entered on his DD Form 214 must match.

3.  The applicant provides the following documents in support of his
application:  Army Commendation Medal (ARCOM) Certificate; Army Achievement
Medal (AAM) Certificates; Temporary Disability Retired List (TDRL) Orders;
Retirement Certificate; State of Oklahoma, Office of Personnel Management,
Veterans Preference Claim Form.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 31 January 1991, the date of his permanent retirement.
The application submitted in this case was received on 19 January 2006.

2.  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 allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant's record shows that he enlisted in the Regular Army and
entered active duty on 28 February 1985.  He was trained in, awarded, and
served in military occupational specialty (MOS) 12B (Combat Engineer), and
the highest rank he attained while serving on active duty was sergeant
(SGT).  His record also confirms that he served in Korea from 9 May 1985
through 7 May 1986.

4.  On 9 March 1989, the applicant was honorably released from active duty
(REFRAD) under the provisions of Army Regulation 635-40, by reason of
temporary disability.  The DD Form 214 he was issued upon his separation
from active duty shows he completed a total of 4 years, 3 months, and 16
days of active military service.

5.  United States Total Army Personnel Command (PERSCOM) Orders Number D21-
20, dated 30 January 1991, directed the applicant's removal from the TDRL
because of permanent disability on 30 January 1991, and his permanent
retirement and placement on the Retired List  on the following day, 31
January 1991, with a 30 percent disability rating.  A Certificate of
Retirement issued to the applicant in conjunction with these orders
confirms he was retired from the United States Army on 31 January 1991.

6.  The applicant provides a blank State of Oklahoma, Veterans Preference
Claim Form in support of his application.  This form indicates a member who
is receiving benefits for a service connected disability rated at 30% or
more are entitled to a 10 point preference and placement at the top of the
list.

7.  Army Regulation 635-5 (Separation Documents) prescribes the separation
documents that must be prepared for soldiers on retirement, discharge,
release from active duty service, or control of the Active Army.  It also
establishes standardized policy for preparing and distributing the DD Form
214.

8.  Chapter 2 of the separation documents regulation contains guidance on
the DD Form 214.  It states, in pertinent part, that the DD Form 214 is a
summary of a Soldier's most recent period of continuous active duty.  It
provides a brief, clear-cut record of active duty service at the time of
release from active duty, retirement, or discharge.  The DD Form 214 is not
intended to have any legal effect on termination of a Soldier's service.
There are no regulatory provisions that provide for issuing a new DD Form
214 to document additional service subsequent to REFRAD.

9.  Army Human Resources Command Message (Date Time Group 9 February 2004)
published implementing instructions for award of the KDSM.  It stated, in
pertinent part, that it was authorized to members who served in defense of
the Republic of Korea for 30 consecutive or 60 non-consecutive days from 28
July 1954 through a future date to be determined by the Secretary of
Defense.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the effective date of his DD Form 214
should be changed to coincide with the retirement date listed on his
Certificate of Retirement was carefully considered.  However, there is
insufficient evidence to support this claim.

2.  By regulation, the DD Form 214 is a summary of a Soldier's most recent
period of continuous active duty.  The DD Form 214 is not intended to have
any legal effect on termination of a Soldier's service, and there are no
regulatory provisions that provide for issuing a new DD Form 214 to
document events that took place subsequent to a member's REFRAD.

3.  The evidence of record confirms the applicant was REFRAD and placed on
the TDRL on 9 March 1989, and that his DD Form 214 accurately lists this
date as the effective date of his separation from active duty.  The fact
that he was subsequently removed from the TDRL on 30 January 1991, and
placed on the Retired List by reason of permanent disability on 31 January
1991 does not support a change to the DD Form 214 he was issued upon his
REFRAD.

4.  The DD Form 214 he was issued in conjunction with his placement on the
TDRL, and the retirement orders he received that directed his permanent
placement on the Retired List by reason of a permanent disability, rated at

30%, more than adequately document his retirement was based on a permanent
disability, which entitles him to retirement benefits.  As a result, there
is an insufficient evidentiary basis to support a change to any of his
retirement documents at this time.  The applicant should present these
documents to the State officials responsible for granting State veterans'
benefits.

5.  The evidence of record does show the applicant is entitled to the
KDSM based on his service in Korea.  Therefore, it would be appropriate to
add this award to his record.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

___LDS _  __JTM __  __JLP __  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 and to excuse failure to timely
file.  As a result, the Board recommends that all Department of the Army
records of the individual concerned be corrected by showing his entitlement
to the Korea Defense Service Medal; and by providing him a correction to
his separation document that includes this award.

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
a change to the effective date of his separation/retirement listed on his
DD Form 214.




                                  ____Linda D. Simmons____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060000779                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2006/08/22                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1991/01/30                              |
|DISCHARGE AUTHORITY     |AR 635-40                               |
|DISCHARGE REASON        |Disability                              |
|BOARD DECISION          |Partial Grant                           |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.  1021 |100.0000                                |
|2.  46                  |107.0000                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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