IN THE CASE OF:	  

	BOARD DATE:	  22 May 2008

	DOCKET NUMBER:  AR20080005624 


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, in effect, that the Korean Defense Service Medal (KDSM) be added to Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) and that the narrative reason for separation listed in Item 28 (Narrative Reason for Separation) of his 24 May 2002 Separation Document (DD Form 214) be corrected to show his disability retirement was permanent as opposed to temporary as is currently listed. 

2.  The applicant states, in effect, that he is requesting his DD Form 214 be corrected to add the KDSM and to change the reason for his separation from temporary to permanent disability.  

3.  The applicant provides the following documents in support of his application:  Enlisted Record Brief (ERB); DD Form 214; Headquarters, United States Army Armor Center and Fort Knox, Orders 102-0163, dated 12 April 2002; United States Army Physical Evaluation Board (PEB) Memorandum, dated 
30 April 2003; and United States Army Physical Disability Agency (USAPDA) Orders D109-3, dated 5 June 2003.

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 record shows that he entered active duty in the Regular Army on 26 December 1989.  He was trained in, awarded, and served in military occupational specialty (MOS) 19K (Armor Crewman).  The record shows the highest rank he attained while serving on active duty was Staff Sergeant (SSG).  

3.  The applicant's Official Personnel Military File (OPMF) contains a Personnel Qualification Record (DA Form 2-1) that shows, in Item 5 (Oversea Service), that he served in the Republic of Korea (ROK) from 17 October 1997 through 
16 October 1998.

4.  Item 9 (Awards, Decorations and Campaigns) of the applicant's DA Form 2-1 shows that during his active duty tenure, he earned the following awards:  Army Service Ribbon (ASR); Army Achievement Medal (AAM); National Defense Service Medal (NDSM) 2nd Award; South West Asia Service Medal (SWASM) with 3 Bronze Service Stars; Army Commendation Medal (ARCOM) 5th Award; Kuwait Liberation Medal, Kuwait (KLM-KU); Noncommissioned Officer Professional Development Ribbon (NCOPDR) with Numeral 2; Army Good Conduct Medal (AGCM) 3rd Award; Driver and Mechanic Badge with Driver-W Bar; Armed Forces Expeditionary Medal (AFEM); Expert Marksmanship Qualification Badge with Pistol Bar; Marksman Marksmanship Qualification Badge with Rifle Bar; and the Overseas Service Ribbon (OSR) 2nd Award.

5.  On 19 March 2002, a PEB convened at Fort Sam Houston, Texas, to evaluate the applicant.  The PEB determined the applicant was physically unfit for further service.  The PEB recommended a combined disability rating of 40 percent (%) and that the applicant be placed on the Temporary Disability Retired List (TDRL), with a reexamination during April 2003.  

6.  On 24 May 2002, the applicant was honorably released from active duty (REFRAD) under the provisions of Paragraph 4-24B[2], Army Regulation 635-40, by reason of Disability-Temporary, and was placed on the TDRL.  The DD Form 214 he was issued upon his REFRAD shows he had completed a total of 
12 years, 4 months, and 29 days of active military service.  

7.  Item 13 of the applicant's DD Form 214 shows he earned the following awards during his active duty tenure:  ARCOM (5th Award); AAM; AGCM (3rd Award); NDSM (2nd Award); AFEM; SWASM with 3 bronze service stars; NCOPDR; ASR; OSR (2nd Award); KLM-Saudi Arabia; KLM-KU; Expert Marksmanship Qualification Badge with Pistol Bar; Marksman Marksmanship Qualification Badge with Rifle Bar; and Driver and Mechanic Badge with Driver-W Bar.  

8.  On 28 April 2003, a PEB convened at Fort Sam Houston, Texas, to reevaluate the applicant.  The PEB determined the applicant was physically unfit for further service with a combined disability rating of 30%, and recommended his placement on the Retired List by reason of permanent disability. 

9.  USAPDA Orders D109-3, dated 5 June 2003, directed the applicant's removal from the TDRL and permanent retirement on 5 June 2003, with a combined disability rating of 30%. 

10.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards.  Paragraph 2-20 contains guidance on award of the KDSM.  It states, in pertinent part, that it is authorized to members who served in Korea between 28 July 1954 and a date to be determined.  

11.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.  Appendix C-10 contains guidance on the TDRL.  It states, in pertinent part, that TDRL status is authorized for a maximum of 5 years, but permanent disposition may be made at an earlier date.  It further states that periodic medical examinations are required at least every 18 months and each periodic examination report is referred to a PEB for a determination as to whether the Soldier is to be retained on, or removed from, the TDRL.  Final disposition may result in permanent retirement with the same, greater, or lesser disability percentage rating; separation with severance pay (if less than 20 years service); or a finding of physical fitness. 

12.  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.  Chapter 2 contains guidance on preparation of the DD Form 214 and 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.  It further states 
that for Active Army Soldiers, a DD Form 214 will be prepared upon termination of active duty by reason of administrative separation (including separation by reason of retirement or expiration term of service (ETS)), physical disability separation, or punitive discharge under the Uniform Code of Military Justice.  There are no regulatory provisions that allow for correction of a DD Form 214 based on action that take place subsequent to a member's REFRAD.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's claim of entitlement to the KDSM was carefully considered and found to have merit.  The evidence of record confirms the applicant served in Korea from 17 October 1997 through 16 October 1998.  As a result, he is entitled to the KDSM and it would be appropriate to add this award to his record and separation document at this time.  

2.  The applicant's contention that Item 28 of his DD Form 214 should be corrected to reflect his permanent disability retirement was also carefully considered.  However, there is an insufficient evidentiary basis to support granting this portion of the requested relief.  By regulation, a DD Form 214 is a summary of a Soldier's most recent period of continuous active duty, and the form is prepared on an Active Army Soldier upon termination of active duty by reason of physical disability separation.  In this case, the applicant was properly issued a DD Form 214 on 24 May 2002, which is the date he was REFRAD and placed on the TDRL.  There are no regulatory provisions that allow for correction of the DD Form 214 to reflect disability determinations that take place subsequent to a member's REFRAD.  As a result, there is no error or injustice related to the entry in Item 28 of his DD Form 214, which accurately reflects the reason for his REFRAD at the time.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x___  ___x____  ___x ____  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.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding the Korean Defense Service Medal to Item 13 of his 24 May 2002 
DD Form 214; and by a correction to his separation document that includes this change.

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 correction of Item 28 (Narrative Reason for Separation) of his DD Form 214.



      _________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)                                         AR20080005624



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ABCMR Record of Proceedings (cont)                                         AR20080005624



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