IN THE CASE OF:	  

		BOARD DATE: 	         27 May 2009

		DOCKET NUMBER:  AR20090002052 


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 DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 28 February 2002 be corrected to show additional active duty service from 3 December 2006 to
6 December 2006 or that he be issued a DD Form 214 for this period of service.  He also requests that the Korea Defense Service Medal (KDSM), the Global War on Terrorism Service Medal (GWOTSM), and the second award of the National Defense Service Medal (NDSM) be shown on his DD Form 214.

2.  The applicant states that he was not issued a new DD Form 214 after his release from active duty on 6 December 2006, that he served in Korea from July 1994 to November 1995, that he was on active duty when the GWOTSM was issued, and that the second award of the National Defense Service Medal is not shown on his DD Form 214.

3.  The applicant provides orders, dated 11 October 2006 and 6 December 2006; an Officer Record Brief; and a copy of his DD Form 214 for the period ending 
28 February 2002 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 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.  Having prior inactive enlisted service in the U.S. Army Reserve (USAR) and active enlisted service in the Regular Army, the applicant was appointed a second lieutenant on 26 June 1988 in the USAR.  He entered active duty on 
17 May 1989 and retired in the rank of captain on 28 February 2002 by reason of sufficient service for retirement.

3.  The applicant's DD Form 214 for the period ending 28 February 2002 does not show the KDSM or the GWOTSM as authorized awards.  This DD Form 214 does show the NDSM as an authorized award; however, the applicant contends he is entitled to a second award of the NDSM.     

4.  The applicant's Officer Record Brief shows he served in Korea for 16 months during the period 1994/1995. 

5.  Orders show the applicant was ordered to active duty on 3 December 2006 and he was released from active duty on 6 December 2006.

6.  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.  In pertinent part, it states that the DD Form 214 is a synopsis of the Soldier’s most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge.

7.  Army Regulation 635-5 also states that a DD Form 214 will be prepared for all personnel after completing 90 days or more of continuous active duty for training, full-time training duty, or active duty support; and after completing initial active duty for training which resulted in the award of a MOS, even though the active duty was less than 90 days.  The regulation does not specifically address retiree recalls.

8.  U.S. Army Human Resources Command (USAHRC) Military Personnel (MILPER) Message Number 08-023, titled:  DD Form 214 on all Retiree Recall Soldiers, issued on 22 January 08 states, in pertinent part, that effective immediately, a DD Form 214 will be prepared and distributed on all retiree recall Soldiers separating from active duty, regardless of the duration of service served during their recall status, to facilitate Soldiers' retiree pay process when they are reinstated on the retired list.

9.  Army Regulation 600-8-22 (Military Awards) 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.  The area of eligibility encompasses all land area of the Republic of Korea, 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.

10.  Army Regulation 600-8-22 provides that the NDSM 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.  Service members on active duty, members of the Selected Reserve in good standing, and members of other than the Selected Reserve who were called to active duty will also be eligible for the NDSM.  To signify receipt of a second or subsequent award of the NDSM, a bronze service star will be worn on service ribbon.

DISCUSSION AND CONCLUSIONS:

1.  The DD Form 214 is a "snapshot in time" and is a reflection of a Soldier's record of active Army service at the time of his/her separation from active duty.  There were no provisions for the issuance of a DD Form 214 for Soldiers ordered to active duty for a period of less than 90 days at the time of the applicant's release from active duty on 28 February 2002, and the regulation does not address retiree recalls at all.  However, recent guidance provides that retiree recalls require a DD Form 214 be issued, regardless of the duration of service served on active duty during their recall status.  Therefore, as a matter of equity a DD Form 214 should be issued showing the applicant entered active duty this period on 3 December 2006 and separated this period on 6 December 2006; and transferring him back to the USAR Control Group (Retired), St. Louis, MO.

2.  The applicant served a period of qualifying service for award of the KDSM and the GWOTSM.  Therefore, his DD Form 214 for the period ending 28 February 2002 should be corrected to show these awards.

3.  The applicant also served a period of qualifying service for a second award of the NDSM.  Therefore, his DD Form 214 for the period ending 28 February 2002 should be corrected to show the NDSM with one bronze service star.

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:

   a.  adding to item 13 of the applicant's DD Form 214 for the period ending
28 February 2002 the Korea Defense Service Medal, Global War on Terrorism Service Medal, and the National Defense Service Medal with one bronze service star; and

	b.  issuing the applicant a DD Form 214 for the period from 3 December 2006 through 6 December 2006 for his period of active duty served as a retiree recall.



      __________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)                                         AR20090002052



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ABCMR Record of Proceedings (cont)                                         AR20090002052



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