IN THE CASE OF:
BOARD DATE: 5 February 2009
DOCKET NUMBER: AR20080017381
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 he be awarded the Army Good Conduct Medal (AGCM) and that the rank listed on his separation document
(DD Form 214) be corrected to reflect the rank title specialist four (SP4).
2. The applicant states, in effect, he should have received the AGCM and his
DD Form 214 does not reflect his rank as SP4.
3. The applicant provides his DD Form 214; Honorable Discharge (HD) Certificate; DA Form 137 (Installation Clearance Record); and Headquarters, II U.S. Army Corps, Camp Kilmer, New Jersey Letter, dated 9 October 1961 and Letter Order Number 3076, subject: Discharge, dated 31 August 1961 in support of his 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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicants military records are not available to the Board for review. A fire destroyed approximately 18 million service members records at the National Personnel Records Center (NPRC) in 1973. It is believed that the applicants records were lost or destroyed in that fire. However, there were sufficient documents remaining in a reconstructed record for the Board to conduct a fair and impartial review of this case. This case is being considered using reconstructed records that primarily consist of the DD Form 214 and other documents provided by the applicant.
3. The applicant's separation document shows that he enlisted in the Regular Army and entered active duty on 8 September 1953. Item 3 (Grade, Rate, Rank and Date of Rank) shows he held the rank of Specialist 3rd Class (SP3) on the date of his release from active duty (REFRAD).
4. Item 27 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 shows he earned the National Defense Service Medal, Korean Service Medal, and the United Nations Service Medal during his active duty tenure. The DD Form 214 confirms he was honorably REFRAD on 25 June 1956, after completing a total of 2 years, 9 months, and 18 days of active military service, of which 1 year, 4 months, and 13 days was served overseas, and that he was transferred to the U.S. Army Reserve (USAR) to complete his remaining military service obligation of 8 years.
5. On 31 August 1961, upon completing his military service obligation, the applicant was honorably discharged from the USAR. The HD Certificate he was issued at the time lists his rank as SP4.
6. The applicant provides a DA Form 137, dated 25 June 1956, which shows he received "Excellent" conduct and efficiency ratings and was recommended for the AGCM by his commander.
7. The applicant also provides Letter Order Number 3076, dated 31 August 1961, which authorized his honorable discharge on that date. He also provides a Headquarters, II U.S. Army Corps, Camp Kilmer letter, dated 9 October 1961, which informed him that based on his request, the name listed in Letter Order Number 3076 was corrected, but that the rank SP4 would remain in accordance with the existing Army regulations in effect on that date.
8. Army Regulation 600-8-22 (Military Awards) contains the Army's awards policy. Chapter 4 prescribes the policy for award of the AGCM. It states, in pertinent part, that the AGCM is awarded to individuals who distinguish themselves by their conduct, efficiency and fidelity during a qualifying period of active duty enlisted service. This period is 3 years, except in those cases when the period for the first award ends with the termination of a period of Federal military service, in which case a period of more than 1 year is a qualifying period. Although there is no automatic entitlement to the AGCM, disqualification must be justified.
9. 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. It also provides instructions for preparing the DD Form 214. The version of the regulation in effect at the time of the applicant's REFRAD stipulated, in effect, that the rank title from the personnel qualification record would be entered in Item 3 of the DD Form 214. The regulation provides no provisions for correcting items on a DD Form 214 based on subsequent changes in grade structure.
10. The Enlisted Grade Structure of the Army between 1 July 1955 and 31 May 1958, identified the rank titles of Corporal and SP3 for members serving in the pay grade of E-4. On 1 June 1958, the rank title of SP3 for members serving in the pay grade of E-4 was changed to SP4.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contention that he should have been awarded the AGCM was carefully considered and found to have merit. The DA Form 137 provided by the applicant confirms he received "Excellent" conduct and efficiency ratings and was recommended for the AGCM by his unit commander at the time of his separation. Therefore, lacking any derogatory information or a formal unit commander disqualification, it is concluded that the applicant completed a period of qualifying honorable service that authorizes him to receive the AGCM. As a result, it would be appropriate to award him the AGCM for his qualifying period of honorable active duty service from 8 September 1953 through 25 June 1956.
2. The applicant's contention that Item 3 of his DD Form 214 should be corrected to show his rank as SP4 was also carefully considered. However, at the time of the applicant's REFRAD, he held the rank of SP3 and in accordance with the regulation in effect at the time this rank title was appropriately entered in Item 3 of his DD Form 214.
3. The DD Form 214 is a summary of a member's active duty service at the time it is issued. There are no regulatory provisions that provide for correction of a DD Form 214 based on subsequent changes to Army policy, which includes the rank structure.
4. A subsequent change to the Army enlisted grade structure in 1958 resulted in the rank title of SP3 being changed to SP4, which is the rank title appropriately listed on the HD Certificate he received in 1961, upon his discharge from the Army Reserve. As a result, there is no error or injustice related to the rank title entry in Item 3 of his DD Form 214 and as a result, it would not be appropriate to change it at this 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 awarding him the Army Good Conduct Medal for his qualifying period of honorable active duty service from 8 September 1953 through 25 June 1956; and by providing him a correction to his DD Form 214 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 changing the rank title listed in Item 3 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) AR20080017381
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ABCMR Record of Proceedings (cont) AR20080017381
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