IN THE CASE OF:	  

		BOARD DATE:	  9 July 2009

		DOCKET NUMBER:  AR20090004371 


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 that his DD Form 214 (Report of Separation from Active Duty) be corrected to reflect awards of the Meritorious Service Medal (MSM), the Korea Defense Service Medal (KDSM), the Army Service Ribbon (ASR), the Overseas Service Ribbon (OSR), and the Noncommissioned Officer Professional Development Ribbon (NCOPDR).

2.  The applicant states that the MSM was awarded to him on 30 August 1978; however, it was omitted from his DD Form 214.  He also states that he desires retroactive awards of the KDSM, the ASR, the OSR, and the NCOPDR.

3.  The applicant provides copies of his DD Forms 214, a copy of his MSM Certificate, a copy of his diploma from the Noncommissioned Officer (NCO) Academy, and a copy of his diploma from the Ordnance NCO Course.

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 enlisted in the Regular Army on 6 February 1958 and served until he was honorably discharged in the pay grade of E-6 on 1 April 1974 due to early release of overseas returnees.

3.  He again enlisted in the Regular Army on 10 September 1971 and served until he was retired on 31 August 1978 and transferred to the Retired List in the pay grade of E-6.  His DD Form 214 issued at the time of his retirement shows that he was awarded the National Defense Service Medal, the Republic of Vietnam Campaign Medal with Device (1960), the Vietnam Service Medal (3 campaigns), the Army Commendation Medal, the Republic of Vietnam Gallantry Cross with Palm Unit Citation, the Army Good Conduct Medal (4th Award), and  2 oversea service bars.  The applicant had served three tours of duty in Korea, two tours of duty in Germany, and one tour of duty in Vietnam during his career.

4.  A review of the applicant's official records failed to reveal orders for award of the MSM; however, his records do contain a copy of the DA Form 638 that recommended him for award of the MSM.

5.  Army Regulation 600-8-22 (Military Awards) states that the KDSM 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 and period of eligibility are as follows.

	a.  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.

	b.  The period of eligibility is 28 July 1954 to a date to be determined by the Secretary of Defense.

	c.  Service members 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:

		(1)  be engaged in combat during an armed engagement, regardless of the time in the area of eligibility, 

		(2)  be wounded or injured in the line of duty and required medical evacuation from the area of eligibility, or
		(3)  be participating 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 1 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.

	d.  Due to the extensive time period for KDSM eligibility, the nonconsecutive service period for eligibility remains cumulative throughout the entire period.

6.  Army Regulation 600-8-22 shows that the ASR was established by the Secretary of the Army on 10 April 1981.  This regulation states, in pertinent part, that effective 1 August 1981, all members of the Active Army, Army National Guard, and Army Reserve in an active Reserve status are eligible for the award upon successful completion of initial entry training.  The award may be awarded retroactively to those personnel who completed the required training before 1 August 1981 provided they had an Active Army status on or after 1 August 1981.

7.  Army Regulation 600-8-22 shows that the OSR was established by the Secretary of the Army on 10 April 1981.  The regulation states, in pertinent part, that effective 1 August 1981, all members of the Active Army, Army National Guard, and Army Reserve in an active Reserve status are eligible for the award for successful completion of overseas tours.  The award may be awarded retroactively to those personnel who were credited with a normal overseas tour completion before 1 August 1981 provided they had an Active Army status on or after 1 August 1981.  Numerals are used to denote the second and subsequent awards of the OSR.

8.  Army Regulation 600-8-22 shows that the NCOPDR was established by the Secretary of the Army on 10 April 1981.  It is awarded to Active Army, Army National Guard, and U.S. Army Reserve Soldiers for successful completion of designated NCO professional development courses.

9.  Army Regulation 600-8-104 (Military Personnel Information Management/ Records) prescribes the policies governing the official military personnel file, the military personnel records jacket, the career management individual file, and Army personnel qualification records.  In pertinent part, this regulation states that for U.S. military decorations the only acceptable source documentation is the order, letter, or memorandum which awards the decoration.  Award certificates, citations, or separation certificates alone will not be the basis for entry of a decoration.  DD Form 214 alone should not be the sole basis for recording a decoration.  This document may be used to initially enter a decoration; however, if the validity of the award on the DD Form 214 is questioned or challenged, the only acceptable proof of award of the decorations will be the order, letter, or memorandum which awarded the decoration.

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant's records do not contain orders awarding him the MSM upon his retirement from active duty, his records do contain a copy of the recommendation for award of the MSM.  Accordingly, it is reasonable to presume that the absence of orders in his OMPF was the result of an administrative oversight.  Accordingly, his MSM Certificate is accepted in lieu of orders and his records should be corrected to reflect the award of the MSM.

2.  The applicant served three tours of duty in Korea and is therefore entitled to be awarded the KDSM and to have it entered in his records at this time.

3.  The applicant's contention that he should be awarded the ASR, the OSR, and the NCOPDR has been noted.  The applicant was retired in 1978 and those awards did not come into existence until 1981.  At the time the awards came into existence in 1981, only persons who were in an active status when the awards were authorized were authorized retroactive awards.  Personnel who had been separated were not authorized retroactive authorization of those awards.  Accordingly, the applicant is not entitled to retroactive awards of the ASR, the OSR, and the NCOPDR.

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 KDSM and by showing that he was awarded the MSM and the KDSM.

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 awarding him the ASR, the OSR, and the NCOPDR.

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 the United States.  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)                                         AR20090004371



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ABCMR Record of Proceedings (cont)                                         AR20090004371



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