IN THE CASE OF:	  

		BOARD DATE:	       4 AUGUST 2009

		DOCKET NUMBER:  AR20090004560 


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, award of the Armed Forces Reserve Medal with "M" (Mobilization) Device.   

2.  The applicant states, in effect, he was activated from a Reserve status in January 1991, and is applying for this award based on the advice of this Board.   

3.  In support of his application, the applicant provides active duty orders, an Army Review Boards Agency (ARBA) letter, his 15 March 1991 DD Form 214 (Certificate of Release or Discharge from Active Duty) and a DD Form 215 (Correction to DD Form 214) issued on 3 November 2008.  

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 in an enlisted status on active duty in the U.S. Navy (USN) from 14 September 1971 through 12 September 1975, and in the U.S. Naval Reserve (USNR) from 13 September 1975 through 13 September 1977.

3.  On 27 December 1983, he was commissioned a second lieutenant (2LT) in the U.S. Army Reserve (USAR), Army Nurse Corps.

4.  On 25 January 1991, the applicant was ordered to active duty with a reporting date of 11 February 1991 in support of Operation Desert Shield for a period of
12 months.  He served on active duty for 1 month and 5 days until being honorably released from active duty (REFRAD) on 15 March 1991 and transferred to the USAR Control Group (Reinforcement).

5.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of the DD Form 214 he was issued on 15 March 1991, as amended by a DD form 215 issued on 3 November 2008, as a result of action by this Board, shows he earned the following awards:  Navy Commendation Medal, Meritorious Unit Commendation (Navy), Navy Good Conduct Medal, Army Reserve Components Achievement Medal, National Defense Service Medal with bronze service star, Vietnam Service Medal, Army Service Ribbon, Republic of Vietnam Campaign Medal, Sharpshooter Marksmanship Qualification Badge with Rifle Bar, Purple Heart, Bronze Star Medal with "V" (Valor) Device, Navy/Marine Corps Commendation Medal, and Combat Action Ribbon.  

6.  On 15 August 1998, the applicant was transferred to the Retired Reserve.  A Reserve Personnel Accounting System (RPAS) Chronological Statement of Retirement Points on file in his Official Military Personnel File (OMPF) shows he served in the USNR from 13 September 1975 through 13 September 1977; however, he did not earn the minimum 50 qualifying retirement points in any of these years of Reserve Component (RC) service.  It further shows that after a break in service between 14 September 1977 and 26 December 1983, he continuously served in an active RC status in the USAR and earned 50 retirement points and qualifying years during the 15-year period between
27 December 1983 and 26 December 1997.  It finally shows that he was transferred to the Retired Reserve, in the rank of major, on 15 August 1998, and that he earned a total of 20 years of qualifying service for Reserve retirement purposes.  

7.  Army Regulation 600-8-22 (Military Awards) contains the Army's awards policy.  Paragraph 5-8 contains guidance on award of the AFRM.  It states, in pertinent part, that it is awarded for honorable and satisfactory service as a 

member or former member of one or more of the RCs of the Armed Forces of the 
United States, including the Coast Guard Reserve and the Marine Corps Reserve, for a period of 10 years.  Such service must be performed within a period of 12 consecutive years.  Every year of active or inactive status honorable service performed prior to 1 July 1949 in any RC will be credited and for RC service performed on or after 1 July 1949, a member must accumulate a minimum of 50 retirement points during each anniversary year.  Paragraph 5-8 stipulates that the "M" Device is authorized for wear on the AFRM by members of the RC who are called or who volunteer and serve on active duty in support of specific U.S. military operations or contingencies designed by the Secretary of Defense, as defined in Section 101(A)(13) of Title 10, United States Code.

8.  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.  Chapter 2 contains preparation instructions for the DD Form 214.  Paragraph 2-1 states, in pertinent part, that the DD Form 214 is a summary of a Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge.  The DD Form 214 is not intended to have any legal effect on termination of a Soldier's service.  The instructions for item 13 state to list awards and decorations for all periods of service.  Paragraph 2-6 of the separation documents regulation contains guidance on alterations and corrections to the DD Form 214. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he is eligible for the AFRM with "M" Device was carefully considered and found to have merit.

2.  The applicant was ordered to active duty in support of Operation Desert Shield and he reported to his assigned unit on 11 February 1991.  The applicant was subsequently REFRAD by official authority on 15 March 1991.  Therefore, given he was called to and entered active duty in support of Operation Desert Shield on 11 February 1991, he is eligible to receive the "M" Device.

3.  Although, the applicant would not have been eligible for award of the AFRM under normal circumstances until completion of 10 years of qualifying RC service on 26 December 1993, it would be appropriate as an exception to the rule to award the applicant the AFRM in order for the applicant to display his entitled "M" Device.  As a result, it would be appropriate to award the applicant the AFRM with "M" Device and to correct his records 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 awarding the applicant Armed Forces Reserve Medal with "M" Device and adding this award to item 13 of the applicant's DD Form 214 for the period ending 15 March 1991.



      _________XXX_____________
               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)                                         AR20090004560



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ABCMR Record of Proceedings (cont)                                         AR20090004560



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