IN THE CASE OF:	  

		BOARD DATE:	  	  12 March 2009

		DOCKET NUMBER:  AR20090001440 


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 awards be added to his DD Form 214 (Certificate of Release or Discharge from Active Duty) and that his under other than honorable conditions (UOTHC) discharge and reentry (RE) code be corrected. 

2.  The applicant states, in effect, that the Commanding General at Fort Hood, Texas gave him a general, under honorable conditions discharge but it is listed on his DD Form 214 as an UOTHC discharge.  He also states, in effect, that all of his decorations are missing from his DD Form 214.

3.  The applicant provides no additional documents 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.  Paragraph 2-5, Section II, of Army Regulation 15-185 (Army Board for Correction of Military Records), the regulation under which this Board operates, states that the Board will not consider an application until the applicant has exhausted all administrative remedies to correct the alleged error or injustice.  In this case, there is no evidence that the applicant previously applied to the Army Discharge Review Board (ADRB) for correction of his military records as it pertains to his characterization of service.  However, the applicant submitted a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) in conjunction with his application to this Board.  The DD Form 293 and associated documents will be forwarded to the ADRB for processing as a separate action.  The ADRB also has authority to consider changing his RE code.  Therefore, these portions of the applicant's request will not be discussed further in the Proceedings.

3.  The applicant enlisted in the Regular Army on 15 July 1999, for a period of 
3 years.  He completed the required training and was awarded military occupational specialty (MOS) 11B (Infantryman).  The highest rank he attained while serving on active duty was specialist (SPC)/E-4.

4.  Section D (Overseas Service) of the applicant's Enlisted Record Brief (ERB) shows he served in the Republic of Korea from 6 January 2000 to 5 January 2001 and during his tour he was assigned to Company D, 1st Battalion, 9th Infantry Regiment, performing duties in MOS 11M (mechanized infantryman).  

5.  Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) shows the applicant was awarded the National Defense Service Medal, the Overseas Service Ribbon, and the Army Service Ribbon.

6.  On 7 August 2002, the applicant accepted nonjudicial punishment (NJP) for disobeying a lawful order by a noncommissioned officer by driving his car without insurance and disobeying a lawful order by a noncommissioned officer by driving his vehicle on or about 15 June 2002.  His imposed punishment was reduction to the grade of private (PV1)/E-1, forfeiture of $552.00 pay for 2 months, and restriction and extra duty for 45 days.

7.  The applicant’s record contains a DA Form 458 (Charge Sheet) which shows that on 21 August 2002 court-martial charges were preferred against the applicant.  He was charged with wrongfully being present for duty with a blood 
alcohol level higher than 0.5 percent on or about 1 August 2002; for committing an assault on a Soldier by striking him in the head and smashing his head into a wall with force likely to produce death or grievous bodily harm on or about 
18 August 2002; and for breaking restriction on or about 18 August 2002.

8.  On 22 October 2002, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  

9.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offense, that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his 
discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  On 25 November 2002, a DA Form 3822-R (Report of Mental Status Evaluation) cleared the applicant for any administrative action deemed appropriate.

10.  On 31 October 2002, the separation authority directed that the applicant be separated under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), by reason of in lieu of court-martial, and that he receive an under other than honorable conditions discharge. On 31 January 2003, the applicant was discharged accordingly.  The DD Form 214 issued to him at the time confirms he was discharged under the provisions of Army Regulation 635-200, chapter 10, with a separation program designator (SPD) code of "KFS" and an RE code of 4.  His DD Form 214 also shows he completed a total of 3 years, 6 months, and 16 days of creditable active military service.

11.  A review of the applicant’s records indicates entitlement to additional awards and decorations that are not shown on his DD Form 214.

12.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, 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.  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 area.  The period of eligibility is 28 July 1954 to a date to be determined by the Secretary of Defense.  The Soldiers 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:  

a.  be engaged in combat during an armed engagement, regardless of the 
time in the area of eligibility;

b.  wounded or injured in the line of duty and required medical evacuation 
from the area of eligibility; or

c.  participate 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he is missing awards was carefully considered and found to have merit.  

2.  The evidence of record confirms the applicant served in the Republic of Korea from 6 January 2000 through 5 January 2001, and as result he is eligible for the KDSM.  Therefore, it would be appropriate at this time to correct his record to show this award.

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 of the individual concerned be corrected by adding to item 13 of the applicant's DD Form 214 the Korea Defense Service Medal.




      ___________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)                                         AR20090001440



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1