IN THE CASE OF:	  

		BOARD DATE:	  	  24 March 2009

		DOCKET NUMBER:  AR20080019182 


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, correction of his records to show award of the Legion of Merit, Meritorious Service Medal (2nd Award), Humanitarian Service Medal, and Korea Defense Service Medal.

2.  The applicant states, in effect, he does not believe that these awards are recorded in his military records.  He also states that this was brought to his attention upon his receipt of the decision regarding his request for the Purple Heart.

3.  The applicant provides a self-authored letter, dated 20 October 2008; Headquarters, Fifth U.S. Army, Fort Sam Houston, Texas, Permanent Orders
Number 85-3, dated 5 September 1984; DA Form 4980-12 (The Meritorious Service Medal Certificate), dated 30 May 1984; DA Form 2496 (Disposition Form), dated 2 May 1981, subject:  Request for Award of the Humanitarian Service Medal; Headquarters, 416th Engineer Command, Chicago, Illinois, memorandum, dated 2 May 1981, subject:  Humanitarian Service Medal (HSM); DD Form 363A (Certificate of Retirement), dated 16 December 1988; and
SF 180 (Request Pertaining to Military Records), dated 1 January 2009 with Korea Defense Service Medal information sheet.

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 military personnel records show he was appointed a Reserve commissioned officer in the U.S. Army Reserve (USAR) in the rank of second lieutenant on 2 June 1952.  He was ordered to active duty on 16 September 1952, completed the Infantry Unit Command course, and awarded specialty 1542 (Infantry Unit Commander).  The applicant served in the Armed Forces Far East (AFFE) in Japan from 14 February through 27 February 1954 and in the AFFE in the Republic of Korea (ROK) from 28 February 1954 through 25 July 1955.

3.  The applicant's military personnel records contain a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) with an effective date of 30 September 1958.  Item 26 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) shows he was awarded the National Defense Service Medal, Korean Service Medal, and United Nations Service Medal.  The DD Form 214 also shows the applicant entered active duty this period on 16 September 1952, was honorably released from active duty (REFRAD) on 30 September 1958, and transferred to the U.S. Army Military District, North Carolina to complete his remaining military service obligation.  At the time, he had completed 6 years and 15 days of net active service this period; 3 months and 14 days of other service; 6 years,
3 months, and 29 days of total service; and 1 year, 5 months, and 12 days of foreign service.

4.  The applicant's military personnel records show he was ordered to active duty on 31 July 1969, completed the Parachutist course, and was awarded specialty 71542 (Infantry Unit Commander - Parachutist).  The applicant served in the U.S. Army Pacific (USARPAC) in the Republic of Vietnam (RVN) from 15 February 1970 through 11 March 1971.

5.  The applicant's military personnel records contain a DD Form 214 with an effective date of 30 July 1971 and DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty), dated 28 October 2008.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the DD Form 214, as corrected by the DD Form 215, shows he was awarded the Bronze Star Medal (2nd Oak Leaf Cluster), Air Medal, Army Commendation Medal, National Defense Service Medal, Vietnam Service Medal with 4 bronze service stars, Republic of Vietnam Campaign Medal with Device (1960), Combat Infantryman Badge, Expert Marksmanship Qualification Badge with Pistol and Rifle Bars, Republic of Vietnam Gallantry Cross with Palm Unit Citation, Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, and 2 Overseas Service Bars.
The DD Form 214 also shows the applicant entered active duty this period on
31 July 1969, was honorably REFRAD on 30 July 1971, and transferred to the USAR Control Group (Reinforcement), U.S. Army Administration Center,
St. Louis, Missouri.  At the time, he had completed 2 years of net active service this period; 17 years, 1 month, and 29 days of other service; 19 years, 1 month, and 29 days of total service; 8 years and 15 days of total active service; and
1 year and 27 days of foreign service.

6.  The applicant's military personnel records contain a DA Form 66 (Officer Qualification Record) which shows the following:

     a.  Item 17 (Foreign Service) shows the applicant served in the AFFE in Japan from 14 February through 27 February 1954; in the AFFE in the ROK from 28 February 1954 through 25 July 1955; and in the USARPAC in the RVN from 15 February 1970 through 11 March 1971.

     b.  Item 21 (Awards and Decorations) shows the applicant was awarded the 
Bronze Star Medal (2nd Oak Leaf Cluster), Air Medal, Army Commendation Medal, National Defense Service Medal (1st Oak Leaf Cluster), Korean Service Medal, United Nations Service Medal, Vietnam Service Medal, Republic of Vietnam Campaign Medal with Device (1960), Armed Forces Reserve Medal, Combat Infantryman Badge, Expert Marksmanship Qualification Badge with Pistol Bar, Republic of Vietnam Gallantry Cross with Palm Unit Citation, Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, and 3 Overseas Service Bars.

     c.  Item 22 (Campaigns) shows he participated in the Vietnam Winter-Spring 1970 and an (as then) unnamed campaign.

     d.  Item 23 (Qualification in Arms) shows the applicant qualified expert with the .45 caliber pistol on 28 April 1968 and he also qualified expert with the M-16 rifle on 29 November 1969.

7.  The applicant's military personnel records contain a DA Form 2-1 (Personnel Qualification Record).  Item 9 (Awards, Decorations and Campaigns) shows the applicant was awarded the Bronze Star Medal (2nd Oak Leaf Cluster), Meritorious Service Medal, Air Medal, Army Commendation Medal, Army Reserve Component Achievement Medal, National Defense Service Medal
(1st Oak Leaf Cluster), Korean Service Medal, United Nations Service Medal, Vietnam Service Medal, Republic of Vietnam Campaign Medal with Device 1960, Armed Forces Reserve Medal with 20-Year Device, Combat Infantryman Badge, Republic of Vietnam Gallantry Cross with Palm Unit Citation, Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, 10 Service Bars, and 
5 Overseas Service Bars.  This item also shows the applicant participated in the Vietnam Winter-Spring 1970 and Vietnam Counteroffensive campaigns.

8.  The applicant’s military personnel records contain a copy of Headquarters, 75th U.S. Army Maneuver Area Command, Houston, Texas, Permanent Orders 8-1, dated 17 May 1979, that show the applicant was awarded the Meritorious Service Medal for outstanding meritorious achievement on 3 June 1979.

9.  The applicant’s military personnel records contain a copy of Headquarters, Fifth U.S. Army, Fort Sam Houston, Texas, memorandum, dated 10 May 1979, subject:  Promotion as a Reserve Commissioned Officer of the Army Under Title 10 of the United States Code and Army Regulation 135-155, that shows the applicant was promoted as a Reserve commissioned officer of the Army to the grade of colonel with a date of rank of 28 June 1979, effective 28 July 1979.

10.  The applicant’s military personnel records contain a copy of Headquarters, USAR Personnel Center, St. Louis, Missouri, memorandum, dated 26 June 1984, subject:  Retirement/Farewell Ceremony and Presentation of Decoration.  This document shows that documents pertaining to the applicant’s transfer to the Retired Reserve and award of the Meritorious Service Medal (1st Oak Leaf Cluster) were forwarded to the Commander, Fifth U.S. Army, Fort Sam Houston, Texas for presentation to the applicant.

11.  The applicant’s military personnel records contain a copy of Headquarters, USAR Personnel Center, St. Louis, Missouri, Permanent Orders 102-1, dated
30 May 1984, that show the applicant was awarded the Meritorious Service Medal (1st Oak Leaf Cluster) for outstanding meritorious service for the period 
4 June 1979 to 28 July 1984.

12.  The applicant’s military personnel records contain a copy of Headquarters, USAR Personnel Center, St. Louis, Missouri, Orders Number C-05-912224, dated 30 May 1984, that show the applicant was relieved from the USAR Control Group (Reinforcement) based on maximum authorized years of service and assigned to the USAR Control Group (Retired) effective 28 July 1984.

13.  In support of his application, the applicant provides the following documents:
     a.  Headquarters, Fifth U.S. Army, Fort Sam Houston, Texas, Permanent Orders 85-3, dated 5 September 1984, that show the applicant was awarded the Legion of Merit for exceptionally meritorious conduct in the performance of outstanding services during the period 29 June 1979 to 30 June 1984.

     b.  DA Form 4980-12, dated 30 May 1984, that shows the applicant was awarded the Meritorious Service Medal for outstanding meritorious service during the period 4 June 1979 to 28 July 1984.

     c.  DA Form 2496, dated 2 May 1981, subject:  Request for Award of the HSM and Headquarters, 416th Engineer Command, Chicago, Illinois, memorandum, dated 2 May 1981, subject:  HSM.  The DA Form 2496 shows the Commander, Headquarters and Headquarters Company, 416th Engineer Command, documented that the applicant directly participated in the Cuban Refugee Resettlement Operation from 18 to 24 May 1980.  The memorandum shows that the Assistant Adjutant General, 416th Engineer Command, Chicago, Illinois authorized award and wear of the HSM for the applicant’s direct participation in the Cuban Refugee Resettlement Operation at Fort McCoy, Wisconsin for the period 18 to 24 May 1980.

     d.  DD Form 363A that shows the applicant was retired from the U.S. Army on 16 December 1988.

     e.  SF 180, dated 1 January 2009 and KDSM information sheet.  The SF 180 shows the applicant documented that he served on active duty in the U.S. Army from 16 September 1952 to 30 September 1958 and from 31 July 1969 to 31 July 1971, and that he served in the USAR from October 1958 to 31 July 1969 and from 1 August 1971 to 16 December 1988.  The KDSM information sheet provides the criteria and procedures to follow for award of the KDSM.

14.  A review of the applicant’s records reveal that he may be authorized an additional award that is not shown on his discharge document.

15.  Army Regulation 600-8-22 (Military Awards) provides that the National Defense Service Medal is awarded for honorable active service for any period between 27 July 1950 through 27 July 1954, 1 January 1961 through 14 August 1974, 2 August 1990 through 30 November 1995, and 11 September 2001 to a date to be determined.  This regulation also provides that each subsequent award of the National Defense Service Medal is denoted by a bronze service star affixed to the service ribbon.

16.  Army Regulation 600-8-22 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.

17.  Army Regulation 600-8-22 provides, in pertinent part, that the Meritorious Service Medal is awarded to members of the Armed Forces of the United States or of a friendly foreign nation who distinguish themselves by outstanding meritorious achievement or service in a noncombat area.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

18.  Army Regulation 600-8-22 also provides, in pertinent part, that an oak leaf cluster is awarded to denote each succeeding award of certain decorations, among which is the Meritorious Service Medal.

19.  Army Regulation 600-8-22, paragraph 3-2 (Decorations authorized and order of precedence) lists the U.S. Army decorations authorized and the order of precedence.  This paragraph shows, in pertinent part, that the Legion of Merit is higher in order of precedence than the Meritorious Service Medal.

20.  Army Regulation 600-8-22, paragraph 1-18 (Period of award), provides, in pertinent part, that for meritorious service awards, the cited period is limited to the period of service during which the individual served under the recommending command, except in the case of retirement awards and refers the reader to paragraph 1-22. 

21.  Army Regulation 600-8-22, paragraph 1-22 (Recognition upon retirement), provides, in pertinent part, that each individual approaching retirement may be considered for an appropriate decoration based on his or her grade, years of service, degree of responsibility, and manner of performance.  Meritorious service awards may be awarded, upon retirement, which may include periods of service longer than that served in the recommending command.  It is recommended that such periods be limited to the last 10 years of service.

22.  Army Regulation 600-8-22, paragraph 1-19 (Duplication of awards), states that only one decoration will be awarded to an individual or unit for the same act, achievement, or period of meritorious service.

23.  Army Regulation 600-8-22, paragraph 1-20 (Interim awards and awards of a lesser decoration), provides, in pertinent part, that to ensure that a deserving act, achievement, or service receives recognition, the appropriate authority may promptly award a suitable lesser military decoration pending final action on a recommendation for a higher award, except for retiring U.S. Army general officers.  When a higher award is approved, the approving authority will revoke the interim award using a separate Permanent Order in accordance with Army Regulation 600-8-105 (Military Orders).  The decoration will be returned by the recipient.

24.  Army Regulation 600-8-22 provides, in pertinent part, that the Humanitarian Service Medal is awarded to members who distinguished themselves by meritorious direct participation in a Department of Defense approved significant military act or operation of a humanitarian nature.  A service member must be on active duty at the time of direct participation, must have directly participated in the humanitarian act or operation within the designated geographical area of operation and within specified time limits, and must provide evidence that substantiates direct participation.

25.  Army Regulation 600-8-22, Table C-1 (Department of Defense and Department of the Army Approved Humanitarian Service Medal Operations), in pertinent part, shows the Cuban Refugee Resettlement from 27 April 1980 to 
1 July 1985 in the Florida Straits was approved by the Department of Defense as qualifying for award of the Humanitarian Service Medal.

26.  Army Regulation 600-8-22 provides that the Korea Defense Service Medal is authorized to members of the Armed Forces who have served on active duty in support of the defense of the Republic of Korea from 28 July 1954 to a date to be determined.  The Military Awards regulation specifies the criteria for award of the Korea Defense Service Medal as follows:  a) service members of the armed forces must have served in support of the defense of the Republic of Korea from 28 July 1954 through a future date to be determined by the Secretary of Defense;  b) the area of eligibility encompasses all land area of the Republic of Korea, and the contiguous water out to 12 nautical miles, and all air spaces above the land and water areas;  c) service members must have been mobilized with units or assigned or attached to units operating in the area of eligibility and physically deployed in the area of eligibility for 30 consecutive or 60 non-consecutive days.

27.  Army Regulation 635-5 (Personnel Separations - Separation Documents), in effect at the time of the applicant's separation from active duty, prescribed policies and procedures regarding separation documents.  It also established standardized policy for preparing and distributing the DD Form 214.  Section III (Instructions for Preparation and Distribution of the Armed Forces of the United States Report of Transfer or Discharge) contains guidance on the preparation of the DD Form 214.  It states, in pertinent part, that all available records will be used as a basis for the preparation of the DD Form 214, including the Enlisted Qualification Record, Officer Qualification Record, and orders.  Paragraph
37 (Item 26 - Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) states, in pertinent part, enter decorations awarded or authorized during the period covered by the DD Form 214 from item 21 of DA Form 66 or section 9 of DA Form 24 (Service Record), omitting authorities cited therein.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his records should be corrected to show award of the Legion of Merit, Meritorious Service Medal (2nd Award), Humanitarian Service Medal, and Korea Defense Service Medal.

2.  The evidence of record shows that Permanent Orders 102-1, dated 30 May 1984, awarded the applicant the Meritorious Service Medal (1st Oak Leaf Cluster) for meritorious service for the period 4 June 1979 to 28 July 1984.  The evidence of record also shows that Permanent Orders 85-3, dated 5 September 1984, awarded the applicant the Legion of Merit for exceptionally meritorious conduct in the performance of outstanding services for the period 29 June 1979 to 30 June 1984.  The evidence of record further shows that only one decoration will be awarded to an individual for the same act, achievement, or period of meritorious service (emphasis added).

3.  The evidence of record shows that meritorious service awards may be awarded, upon retirement, which may include periods of service longer than that served in the recommending command and that such period is limited to the last 10 years of service.  The evidence of record also shows that the Legion of Merit is higher in order of precedence than the Meritorious Service Medal.  The evidence of record further shows that to ensure a deserving act, achievement, or service receives recognition, the appropriate authority may promptly award a suitable lesser military decoration pending final action on a recommendation for a higher award; however, only one decoration will be awarded to an individual for the same act, achievement, or period of meritorious service; and when a higher award is approved, the approving authority will revoke the interim award using a separate Permanent Order.
4.  In the processing of the applicant's case, contact was made via electronic mail with the applicant and the pertinent provisions of the governing Military Awards regulation were explained (i.e., order of precedence, period of award, recognition upon retirement, duplication of awards, interim awards, and revocation of awards of a lesser decoration).  The applicant provided his response via voicemail, he indicated that he understood the Army regulatory guidance requiring revocation of the duplicate award, and concluded by stating that it was his desire to keep the Legion of Merit on his records.  Therefore, in view of the foregoing, the applicant is entitled to correction of his records to show award of the Legion of Merit.  However, based on award of the Legion of Merit, the applicant’s records should also be corrected to show revocation of the interim award of the Meritorious Service Medal (1st Oak Leaf Cluster).

5.  Records show that the applicant served a qualifying period for award of the National Defense Service Medal during the period 16 September 1952 to 27 July 1954.  Records also show the applicant served a second qualifying period for award of the National Defense Service Medal during the period 31 July 1969 to 30 July 1971.  Therefore, it would be appropriate to correct his records to show award of the National Defense Service Medal with 1 bronze service star.

6.  The evidence of record shows that the applicant served a qualifying period of service for award of the Korea Defense Service Medal from 28 July 1954 to
25 July 1955.  Therefore, it would be appropriate to correct his records to show this service medal.

7.  The evidence of record shows that the Cuban Refugee Resettlement (from
27 April 1980 to 1 July 1985) in the Florida Straits was approved by the Department of Defense as qualifying for award of the Humanitarian Service Medal.  The evidence of record also shows that a service member must be on active duty at the time of direct participation, must have directly participated in the humanitarian act or operation within the designated geographical area of operation and within specified time limits, and must provide evidence that substantiates direct participation.  Notwithstanding the documentary evidence provided by the applicant in support of his request, there is no evidence the applicant was on active duty during the period 18 - 24 May 1980 or that he directly participated in the Cuban Refugee Resettlement within the designated geographical area of operations (i.e., in the Florida Straits).  In this regard, it is noted that the documentary evidence provided by the applicant shows he provided support at Fort McCoy, Wisconsin.  Therefore, there is insufficient evidence to support the applicant’s claim to the Humanitarian Service Medal for direct participation in the Cuban Refugee Resettlement.


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.  adding to item 26 of his DD Form 214, with an effective date of
30 September 1958, the Korea Defense Service Medal.

     b.  deleting from item 24 of his DD Form 214 with an effective date of 30 July 1971, as corrected by the DD Form 215, dated 28 October 2008, the National Defense Service Medal.

     c.  adding to item 24 of his DD Form 214, with an effective date of 30 July 1971, the National Defense Service Medal (with 1 bronze service star) and Korea Defense Service Medal.

     d.  revoking Headquarters, USAR Personnel Center, St. Louis, Missouri, Permanent Orders Number 102-1, dated 30 May 1984, that announced the interim award of the Meritorious Service Medal (1st Oak Leaf Cluster) for meritorious service for the period 4 June 1979 to 28 July 1984.

     e.  filing in his military personnel records a copy of Headquarters, Fifth U.S. Army, Fort Sam Houston, Texas, Permanent Orders 85-3, dated 5 September 1984, that awarded the Legion of Merit for exceptionally meritorious conduct in the performance of outstanding services during the period 29 June 1979 to
30 June 1984.  (The applicant is advised that because this award is for a period of service that was subsequent to his last period of active duty service, it is not authorized for entry on his DD Form 214 with an effective date of 30 July 1971).



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 award of the Meritorious Service Medal (1st Oak Leaf Cluster) and Humanitarian Service Medal.

3.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.




      _______ _   _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)                                         AR20080019182



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ABCMR Record of Proceedings (cont)                                         AR20080019182



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