RECORD OF PROCEEDINGS


	IN THE CASE OF:	


	BOARD DATE:	  27 March 2007
	DOCKET NUMBER:  AR20060012174 


	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.


	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 rank shown on his DD Form 214 (Report of Separation From the Armed Forces of the United States) be changed from private first class (PFC) to corporal (CPL). 

2.  The applicant essentially states that he was promoted from PFC to CPL prior to his release from active duty and the fact that his DD Form 214 shows his rank was only PFC was an oversight.

3.  The applicant provides his DD Form 214 in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 
8 May 1954, the date of his release from active duty.  The application submitted in this case is dated 17 August 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 majority of the applicant’s military records are not available for review.  A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center in 1973.  It is believed that the majority of the applicant’s records were lost or destroyed in that fire.  This case is primarily being considered using the document provided by the applicant and one of the documents in his remaining military records, which is a Standard Form 88 (Report of Medical Examination).

4.  The applicant essentially states that his rank on his DD Form 214 should have been CPL instead of PFC.  One document in his military records, a Standard Form 88, dated 7 May 1954, shows that his rank was CPL.  However, it is not known who entered the rank on this form.  Further, there is no evidence in the military records to show what his date of rank to CPL would have been, if in fact, he was actually promoted from PFC to CPL.  His military records do not contain a promotion document which conclusively shows he was promoted CPL.  
5.  Further, the applicant authenticated his DD Form 214 with his signature, attesting to the accuracy of the information contained on that form, which showed his rank at the time of his release from active duty on 8 May 1954 was PFC. 

6.  During a review of the applicant’s records, it was determined that he is entitled to an additional award that is not shown on his DD Form 214.

7.  The applicant’s DD Form 214 shows that he was awarded the Korean Service Medal with One Bronze Service Star and the United Nations Service Medal for his service in Korea during the Korean War.  His DD Form 214 also shows that he served 10 months of foreign service.  However, it does not show that he was awarded the Republic of Korea – Korea War Service Medal.

8.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

9.  The Government of the Republic of Korea issued the Korean War Service Medal (ROK-KWSM) to pay tribute to eligible Korean War veterans for their historic endeavors to preserve the freedom of the Republic of Korea and the free world.  The Department of Defense approved acceptance and wear of the ROK-KWSM.  To qualify for award of the ROK-KWSM, the veteran must have served between 25 June 1950 and 27 July 1953 and been on permanent assignment for 30 consecutive days, or on temporary duty for 60 non-consecutive days, within the territorial limits of Korea, in the waters immediately adjacent thereto, or in aerial flight over Korea participating in actual combat operations or in support of combat operations. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his rank shown on his DD Form 214 should be changed from PFC to CPL.

2.  While the applicant’s military records contains a Standard Form 88 which shows that his rank was CPL on 7 May 1954, it is not known who made the entry on this form.  Also, there is no promotion document in his remaining military 
records which conclusively shows he was promoted to CPL.  Additionally, there is no indication in his military records what his date of rank to CPL would have been.  Further, the applicant authenticated his DD Form 214 with his signature, attesting to the accuracy of the information contained on that form, which showed his rank at the time of his release from active duty on 8 May 1954 was PFC.  

3.  Regrettably, absent evidence which conclusively shows he was promoted from PFC to CPL, and the date of the promotion, regularity must be presumed in this case.  In view of the foregoing, the evidence is insufficient to support changing the applicant’s rank on his DD Form 214.

4.  Evidence of record shows that the applicant served more than 30 consecutive days in Korea during a qualifying period of service for award of the Republic of Korea – Korean War Service Medal.  Therefore, he is entitled to award of the Republic of Korea – Korean War Service Medal, and correction of his military records to show this award.  

5.  Evidence shows that the applicant’s records contain administrative error which does not require action by the Board.  Therefore, administrative correction of the applicant’s records will be accomplished by the Case Management Support Division (CMSD), St. Louis, Missouri, as outlined by the Board in paragraph 3 of the BOARD DETERMINATION/RECOMMENDATION section below.

6.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 8 May 1954; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 7 May 1957.  The applicant 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

___KLW_  ___E.F._  ___CD___  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.

3.  The Board determined that administrative error in the records of the individual concerned should be corrected.  Therefore, the Board requests that the CMSD-St. Louis administratively correct the records of the individual concerned to show the award of the Republic of Korea – Korean War Service Medal.





_______Kenneth L. Wright____
          CHAIRPERSON




INDEX

CASE ID
AR20060012174
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY WITH ADMIN NOTE
REVIEW AUTHORITY
AR 15-185
ISSUES         1.
110.0000.0000
2.
129.0500.0000
3.

4.

5.

6.