RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	   17 April 2007
	DOCKET NUMBER:  AR20060008081 


	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.


x
	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, correction of his records to show his entitlement to Hostile Fire Pay, which he refers to as combat pay, and the 
Shoulder Sleeve Insignia-Former Wartime Service, which he refers to as a combat patch, based on his service on the Demilitarized Zone (DMZ) in the Republic of Korea (ROK) from 2 February 1968 through 1 April 1969.  

2.  The applicant states, in effect, that he served on the DMZ in the ROK during the period 2 February 1968 through 1 April 1969.  He claims that based on his service on the DMZ in the ROK, he was authorized combat pay, and would like his records corrected to show his entitlement to combat pay and to a combat patch based on this DMZ service.  He further states that he is not interested in any back pay and just wants his military record to correctly reflect this service. He goes on by requesting proper documentation of these entitlements in order for him to be properly compensated by the Department of Veterans Affairs (VA) for Agent Orange exposure and for future claims.

3.  The applicant provides the following documents in support of his application:  Self-Authored Letter; Travel Voucher or Sub-Voucher (DD Form 1351-2), Military Pay Vouchers (DA Forms 2349), VA Rating Document; Korea Defense Veterans Internet Document Extracts; and Personnel Qualification Record (DA Form 2-1).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice that occurred on 30 November 1992.  The application submitted in this case is dated 24 May 1992.

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 1 July 1964.  He was trained in, awarded, and served in military occupational specialty (MOS) 11C (Indirect Fire Infantryman) and MOS 94B (Food Service Specialist).  

4.  The applicant's Personnel Qualification Record (DA Form 2-1) shows that the highest rank he attained while serving on active duty was master sergeant (MSG).  It also shows that he completed five overseas tours in Germany and two overseas tours in the ROK.  The first ROK tour was from 1 February 1968 through 1 April 1969, and the second was from 18 June 1980 through 16 June 1981.  Item 35 (Record of Assignments) shows that during his first tour in the ROK, he was assigned to Headquarters and Headquarters Battery (HHB), 7th Infantry Division Artillery, performing duties in MOS 94B as a food service specialist.  It also contains a notation showing the applicant was attached to the 2nd Infantry Division and served on the DMZ.

5.  Item 9 (Awards, Decorations & Campaigns) shows the applicant received the Armed Forces Expeditionary Medal and ROK Presidential Unit Citation for his service in Korea.  However, it gives no indication that the applicant was authorized the SSI-FWTS for any of his overseas service while serving on active duty.  The applicant last reviewed the DA Form 2-1 on 15 July 1992, during his retirement processing. 

6.  On 17 August 1972, the applicant was honorably discharged for the purpose of immediate reenlistment.  Item 22c (Foreign and/or Sea Service) of the 
DD Form 214 he was issued at the time shows he completed 4 years and 
3 months of overseas service, during the period covered by the separation document (18 July 1966-17 August 1972).  

7.  On 18 August 1972, the applicant reenlisted in the Regular Army for 4 years and remained on active duty.  He served until being honorably discharged for the purpose of reenlistment on 27 May 1976.  The DD Form 214 issued to him at the time contains an entry confirming his service in the ROK from 1 February 1968 through 1 April 1969 in Item 19 (Indochina or Korea Service Since August 5, 1964).

8.  The applicant continued to serve on active duty until 30 November 1992, at which time he was honorably released from active duty for the purpose of retirement.  The DD Form 214 he was issued at the time shows he completed a total of 28 years and 5 months of active military service. 

9.  The applicant provides a Travel Voucher or Sub-Voucher (DD Form 1351-2) in support of his application.  This document shows that on 29 March 1969, he departed from McDonald Barracks, DMZ Korea for Seattle, Washington.  He also provides Leave and Earnings Statements (LES) for June and August 1968 and for February 1969.  These documents show that he received foreign duty pay; however, they do not indicate he received or was authorized hostile fire, or combat, pay.  
10.  During the processing of this case, a member of the Board staff contacted the Defense Finance and Accounting Service (DFAS) to see if they could determine if the applicant was entitled to hostile fire pay during his assignment to Korea.  DFAS officials confirmed that pay records are no longer on file for the period in question.  

11.  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.  The regulation in effect between 1968 and 1969, the period during which the applicant served in Korea, provided only for entering overseas service completed during the period covered by the DD Form 214 in Item 22c.  It provided no special provisions for documenting service in Korea or on the DMZ.  The regulation in effect between 1972 and 1979 provided for documenting Indochina and Korea completed since August 5, 1964 in Item 19.  The current version of the regulation provides for entering all overseas service completed during the period covered by the report in Item 12f (Foreign Service).  There are no current provisions that provide for documenting service in the ROK or on the DMZ in Korea.  

12.  Army Regulation 670-1 (Wear and Appearance of Army Uniforms and Insignia) prescribes the authorization for wear, composition, and classification of uniforms, and the occasions for wearing all personal (clothing bag issue), optional, and commonly worn organizational Army uniforms. It also prescribes the awards, insignia, and accouterments authorized for wear on the uniform, and how these items are worn. General information is also provided on the authorized.  Paragraph 28-17 contains guidance on the wear of the SSI-FWTS and it states, in pertinent part, that it is authorized for those personnel who were awarded the Purple Heart, Combat Infantryman Badge, Combat Medical Badge, or who qualified for at least one month's hostile fire pay for service in a hostile fire area in Korea during the period between 1 April 1968 and 31 August 1973. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his record should be corrected to show his entitlement to combat pay and a combat patch for his service on the DMZ in the ROK between 1968 and 1969 was carefully considered.  However, there is insufficient evidence to support this claim.


2.  The evidence of record does confirm the applicant served in the ROK from 
1 February 1968 through 1 April 1969; however, there is no indication that he was authorized or received hostile fire pay or that he was authorized to wear the 
SSI-FWTS based on this service.  The applicant provided LESs for June and August 1968 and February 1969; however, none of these pay vouchers show he received or was authorized hostile fire pay, and his entitlement to this pay can no longer be determined by DFAS military pay records.  Further, there is no indication that the applicant ever attempted to resolve this pay issue while he remained on active duty.  As a result, absent evidence to the contrary, it is reasonable to presume he was not authorized hostile fire pay while serving in Korea.  

3.  The DD Forms 214 issued to the applicant throughout his military service properly record the overseas service he completed during each of the periods documented by the specific separation documents.  The DD Form 214 he was issued on 27 May 1976, also specifically documents his service in Korea during the period in question in Item 19. 

4.  Further, the unit of assignment entry contained in Item 35 of the applicant's DA Form 2-1 contains a note indicating he served on the DMZ; however, his entitlement to the SSI-FWTS is not annotated in Item 9 or elsewhere on the record.  The applicant last audited this record on 15 July 1992, during his retirement processing.  In effect, this review was his verification that the information contained on the record was correct at that time.  There is no indication that the applicant ever raised or attempted to resolve the SSI-FWTS entitlement issue while he remained on active duty.  As a result, it is reasonable to presume he was not authorized to wear a combat patch based on his service in the ROK by proper authority during his active duty tenure.  

5.  Absent any evidence confirming that he was ever authorized hostile fire pay or the SSI-FWTS for his service in the ROK while he was serving on active duty, there is an insufficient evidentiary basis to support granting the requested relief at this late date.  

6.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.


7.  The applicant is also advised that In order to correct an LES, a correction would have to be made to the pay record.  However Title 37, United States Code, Section 3702, commonly referred to as the "Barring Statute", provides a 6-year statute of limitation on monetary claims made against the Government.  As a result, by law, correction of his pay record is no longer authorized.  

8.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 30 November 1992, the date of his retirement.  Therefore, the time for him to file a request for correction of any error or injustice expired on 29 November 1995.  He did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__x __  __x __  __x  _  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.




_____x___
          CHAIRPERSON


INDEX

CASE ID
AR2006008081
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/04/17
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
1992/11/30
DISCHARGE AUTHORITY
AR635-200 . . . . .  
DISCHARGE REASON
Retirement
BOARD DECISION
Deny
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
100
2.
128
3.

4.

5.

6.