IN THE CASE OF:	  

		BOARD DATE:	  4 November 2008

		DOCKET NUMBER:  AR20080006704 


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, amendment of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show award of the Legion of Merit and the Korea Defense Service Medal.

2.  The applicant states that his DD Form 214 is incomplete without those awards and authorized medals.  The Legion of Merit was awarded after his retirement date.  The Korea Defense Service Medal was authorized at a later date. 

3.  The applicant provides a copy of his DD Form 214, copies of orders awarding him the Legion of Merit, and a copy of the Korea Defense Service Medal Self- Certification Document in support of this application.

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.  On 27 May 1967, the applicant entered active duty as a commissioned officer in the rank of captain (CPT)/pay grade O-3, with prior service in the United States Army Reserve as a commissioned officer.  The highest rank he achieved was colonel (COL)/pay grade O-6.

3.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows he served in the Republic of Korea from 31 August 1979 to 30 August 1980.

4.  On 7 October 1985, the applicant was honorably retired in the grade of O-6, by reason of physical disability - temporary.  He had completed 20 years,
6 months, and 13 days of total active service that was characterized as honorable.

5.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of the applicant’s DD Form 214 shows the following awards: the Bronze Star Medal, Meritorious Service Medal with 1st Oak leaf Cluster, Army Commendation Medal with 3d Oak Leaf Cluster, National Defense Service Medal, Overseas Service Ribbon, Army Service Ribbon, Vietnam Service Medal, Combat Medical Badge, Republic of Vietnam Campaign Medal with Device (1960), Republic of Vietnam Gallantry Cross with Palm Unit Citation, and the Vietnam Technical Services Medal 1st Class.  Neither the Legion of Merit nor the Korea Defense Service Medal is shown as authorized awards.

6.  Headquarters, Health Services Command, Fort Sam Houston, TX Permanent Orders 74-2, dated 16 October 1985, awarded the applicant the Legion of Merit for exceptionally meritorious conduct in the performance of outstanding services for the period from 7 October 1975 to 7 October 1985.

7.  Army Regulation 600-8-22 (Military Awards) states, in pertinent part, that the Legion of Merit is awarded to individuals who distinguish themselves by exceptionally meritorious conduct in the performance of outstanding services and achievements.  The performance must merit recognition of key individuals for service rendered in a clearly exceptional manner.  Performance of duties normal to the grade, branch, specialty or assignment and experience of an individual is not an adequate basis for this award.  In peacetime, service should be in the nature of a special requirement or an extremely difficult duty performed in an unprecedented and clearly exceptional manner.  However, justification may accrue by virtue of exceptionally meritorious service in a succession of important positions.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.



8.  Army Regulation 600-8-22 states that the Korea Defense Service Medal is authorized for award to members of the Armed Forces of the United States who have served on active duty in support of the defense of the Republic of Korea.

	a.  The area of eligibility and period of eligibility are as follows:  

		(1)  the area of eligibility encompasses all land area of the Republic of Korea, and the contiguous water out to 12 nautical miles, 

		(2)  all air spaces above the land and water area.

   b.  The period of eligibility is 28 July 1954 to a date to be determined by the Secretary of Defense. 

   c.  Service members must have been assigned, attached, or mobilized to units operating in the area of eligibility for 30 consecutive or for 60 nonconsecutive days, or meet the following criteria:  

		(1)  be engaged in combat during an armed engagement, regardless of the time in the area of eligibility, 

		(2)  wounded or injured in the line of duty and required medical evacuation from the area of eligibility, or

		(3)  participating as a regularly assigned air crewmember flying sorties into, out of, or within the area of eligibility in direct support of military operations. Each day that one or more sorties are flown in accordance with these criteria will count as one day toward the 30 or 60-day requirement, and personnel who serve in operations and exercises conducted in the area of eligibility are considered eligible for the award as long as the basic time criteria is met.  Due to the extensive time period for KDSM eligibility, the nonconsecutive service period for eligibility remains cumulative throughout the entire period.

9.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  It states that, for Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized), list awards and decorations for all periods of service in the priority sequence specified in Army Regulation 600-8-22.  Each entry will be verified by the Soldier’s records.  Do not use abbreviations.


DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request that his military record be corrected to show award of the Legion of Merit and the Korea Defense Service Medal were carefully considered and determined to have merit.

2.  Headquarters, Health Services Command, Fort Sam Houston, TX Permanent Orders 74-2 awarded the applicant the Legion of Merit.  Therefore, his separation document should be amended to reflect this award.

3.  The evidence of record also shows that the applicant completed a qualifying period of service in Korea for award of the Korea Defense Service Medal.  Therefore, it would be appropriate to add this award to his record at this time.  

4.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

BOARD VOTE:

_____X___  ____X____  ____X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records pertaining to the individual concerned be corrected by adding the Legion of Merit and the Korea Defense Service Medal to the list of awards contained on his DD Form 214, dated 7 October 1985; and providing him a correction to his separation document that includes these awards.



      __________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)                                         AR20080006704



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ABCMR Record of Proceedings (cont)                                         AR20080006704



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