IN THE CASE OF:	  

		BOARD DATE:	  17 March 2009

		DOCKET NUMBER:  AR20080018131 


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 his final DD Form 214 (Report of Separation from Active Duty), dated 31 March 1976, be corrected to include all awards and decorations he earned during his military service.

2.  The applicant states, in effect, that his final DD Form 214 does not include all awards to which he is entitled, which include the Legion of Merit (LOM) he was awarded at retirement, and the American Defense Service Medal (ADSM), American Campaign Medal (ACM), Korean Service Medal (KSM), Vietnam Service Medal (VSM), Armed Forces Reserve Medal (AFRM), Navy/Marine Corps Overseas Service Ribbon (OSR), National Defense Service Medal (NDSM), Marine Corps Expeditionary Medal, and Marine Corps Good Conduct Medal.

3.  The applicant provides self-authored letters, dated 30 June and 1 July 2008; and the 8 other documents listed in item 17 (Remarks) of his application in support of his request.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that the relief requested by the applicant be granted.  


2.  Counsel states, in effect, that it is their opinion that the issues raised by the applicant amply advance his contentions and substantially reflect the probative facts needed for equitable review.

3.  Counsel provides a statement in support of the 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.  The applicant's record shows that he served on active duty in the United States Marine Corp (USMC), in an enlisted status, for 1 year, 8 months, and 
20 days between 26 May 1944 and 15 February 1946.  His record does not include a separation document covering this period of active duty service.  His record does show that during this period he served overseas in the Asiatic-Pacific Theater of Operations (APTO) from 12 November 1944 through 
8 December 1945.  

3.  The applicant's record also shows that he served in the Enlisted Reserve Corps (ERC), not on active duty, from 28 April 1949 through 5 March 1951, and that he was commissioned a second lieutenant (2LT) in the United States Army Reserve (USAR) on 6 March 1951.  It further shows that he entered active duty in that status on 1 November 1952, and that he continued to serve on active duty for 1 year, 3 months, and 5 days until being honorably released from active duty (REFRAD) and returned to the USAR, in the rank of first lieutenant (1LT), on
5 February 1954.  The DD Form 214 he was issued for this period of service listed the NDSM, Asiatic-Pacific Campaign Medal (APCM), ADSM, and the World War II Victory Medal as earned awards.  

4.  The record shows the applicant continued to serve in the USAR, not on active duty, through 7 May 1959, and reentered active duty as a commissioned officer in the rank of captain (CPT) on 8 May 1959.  He remained in an active duty 

status until 31 March 1976, at which time he was honorably retired by reason of physical disability, in the rank of colonel (COL), after completing 20 years, 
1 month, and 15 days of active military service and a total of 28 years, 7 months, and 23 days of military service. 

5.  The applicant's qualification records (DA Form 66 and DA Form 2-1) show he completed two overseas service tours, the first in the APTO from 12 November 1944 through 8 December 1945, and the second in the United States Army Pacific (USARPAC)-Japan from 8 June 1960 through 28 March 1963.  There are no entries on his qualification records that indicate he ever served in the Republic of Korea (ROK) or the Republic of Vietnam (RVN) during his active duty tenure.

6.  Item 9 (Awards, Decorations and Campaigns) of the applicant's DA Form 2-1, which was prepared on 6 November 1974 and last reviewed on 17 January 1975, shows he earned the following awards during his active duty tenure:  NDSM; ACM; AFRM; APCM, World War II Victory Medal, and Presidential Unit Citation (PUC).  

7.  The DD Form 214 issued to the applicant on 31 March 1976, the date of 
his retirement, lists the awards entered in Item 9 of the DA Form 2-1 in Item 26 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized).  

8.  The applicant's Official Military Personnel File (OMPF) is void of a recommendation for or orders awarding the applicant the LOM upon his retirement.  The OMPF does include a Headquarters, USMC letter, dated 
7 August 2000, which confirms the applicant's entitlement to the Combat Action Ribbon (CAR) for his service during World War II.  This provides no verification of his eligibility for any other awards for his USMC service.  It also contains a NAVPERS Form 1560 (Transmittal of and/or Entitlement to Awards), dated
27 May 2008, which was issued by the Navy Personnel Command.  This document confirms his entitlement to the World War II Victory Medal, APCM with 1 bronze service star, PUC, and the CAR.  The NAVPERS Form 1560 is void of any indication that he was eligible for or earned the Marine Corps Expeditionary Medal, Marine Corps Good Conduct Medal, or Navy/Marine Corps OSR.

9.  The applicant provides an LOM award certificate, dated 31 March 1976, which indicates he was awarded the LOM for meritorious service during the period 
15 July 1973 to 31 March 1976.  The applicant failed to provide official orders authorizing/announcing this award.  



10.  Army Regulation 600-8-22 (Military Awards) prescribes the Army's awards policy.  Paragraph 1-9 contains guidance on processing awards and states, in pertinent part, that peacetime awards will be submitted on a typed DA Form 638 (Recommendation for Award) and will be expeditiously processed.  It further states that awards will be recorded in military orders and certificates by the final approving authority and a final record of each recommendation and the resulting decision will be maintained for historical purposes. 

11.  Paragraph 2-13 of the awards regulation provides guidance on award of the VSM.  It states, in pertinent part, that it is authorized for service in the RVN area of operations between 3 July 1965 and 28 March 1973.  

12.  Paragraph 5-9 of the awards regulation provides guidance on the KSM.  It states, in pertinent part, that it is authorized for service in the ROK area of operations between 27 June 1950 and 27 July 1954.  

13.  Paragraph 5-14 of the awards regulation contains guidance on the APCM and states, in pertinent part, that a bronze service star is authorized with this award for each campaign a member was credited with participating in while serving in the APTO.  

14.  Paragraph 5-17 of the awards regulation contains guidance on the ADSM.  It states, in pertinent part, that it is authorized for service between 8 September 1939 and 7 December 1941 under orders to active duty for a period of 12 months or longer.  

15.  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 version of the regulation in effect at the time of the applicant's retirement provided for entering only awards earned during the period covered by the DD Form 214.  The current version of the regulation provides for entering all awards earned during military service on the DD Form 214.  Both versions indicated that the qualification record and documents in the OMPF were the source records/documents for entries on the DD Form 214.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's qualification records and DD Forms 214 show he earned the following awards during his active duty tenure:  NDSM; ADSM, ACM; AFRM; APCM; PUC; and World War II Victory Medal.  All of these awards, with the 

exception of the ADSM, were listed on his final 31 March 1976 DD Form 214.  Further, a letter from Headquarters, USMC, dated 7 August 2000, confirms his entitlement to the CAR for his service during World War II.  Therefore, it would be appropriate and serve the interest of equity to correct Item 26 of his final
31 March 1976 DD Form 214 to include all these awards, with the exception of the ADSM.

2.  Although the ADSM was listed on the applicant's 5 February 1954 DD Form 214, it appears this was the result of an administrative error given he was not on active duty between 8 September 1939 and 7 December 1941, which is the period of authorization for the ADSM.  While the Board will not remove the award from his 1954 DD Form 214, it would not be appropriate to add it to his final 1976 DD Form 214.  

3.  By regulation, awards entered on the DD Form 214 must be supported by entries on the qualification record and/or by documents/orders on file in the OMPF.  Although the applicant has provided an LOM certificate, the evidence of record is void of and the applicant has failed to provide an award recommendation or official orders confirming the LOM in question was approved by the proper authority and authorized/announced in official orders.  As a result, the regulatory burden of proof necessary to support adding the LOM to his final DD Form 214 has not been satisfied in this case.  

4.  The applicant's record is also void of any indication that he was ever recommended for or awarded the Marine Corps Good Conduct Medal, 
Navy/Marine Corps Overseas Service Ribbon, or Marine Corps Expeditionary Medal and his eligibility for these awards was not addressed and/or confirmed in the Headquarters, USMC letter, dated 7 August 2000.  Further, his record is void of any indication that he served in either the ROK or the RVN during a period that would have qualified him to receive the KSM or VSM.  As a result, there is an insufficient evidentiary basis to support adding these awards to his final DD Form 214. 

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:

   a.  deleting from Item 26 of his 31 March 1976 DD Form 214 the current list of awards;
   
   b.  adding to Item 26 of his 31 March 1976 DD Form 214 the entry "National Defense Service Medal, Armed Forces Reserve Medal, Asiatic-Pacific Campaign Medal with 1 bronze service star, American Campaign Medal, World War II Victory Medal, Presidential Unit Citation, and Combat Action Ribbon"; and
   
   c.   providing him a correction to his 31 March 1976 DD Form 214 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 adding the Legion of Merit, American Defense Service Medal, Marine Corps Good Conduct Medal, Navy/Marine Corps Overseas Service Ribbon, Marine Corps Expeditionary Medal, Korean Service Medal, or Vietnam Service Medal to his final 31 March 1976 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)                                         AR20080018131



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ABCMR Record of Proceedings (cont)                                         AR20080018131


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