BOARD DATE: 5 January 2010
DOCKET NUMBER: AR20090010501
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 (Report of Separation from Active Duty) be corrected to show all of his awards and decorations.
2. The applicant essentially states that an administrative error occurred at the time his DD Form 214 was prepared.
3. The applicant provides no additional evidence 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 applicants 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 applicants 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 records show that he enlisted in the Regular Army on 10 July 1974 for a period of 3 years. He completed basic and advanced individual training and was awarded military occupational specialty 76Y (Unit Supply Specialist). The applicant was transferred to Korea on 23 January 1975 and served 1 year and 25 days assigned to Headquarters and Headquarters Company, 122nd Signal Battalion during his tour in Korea. While assigned to this unit, the applicant accepted nonjudicial punishment under Article 15 of the Uniform Code of Military Justice on five occasions for offenses such as absenting himself without authority from his organization, failing to go at the time prescribed to his appointed place of duty, wrongfully and unlawfully leaving the scene of an accident, absenting himself without authority from his place of duty, and breaking restriction. On 12 February 1976, the applicant was discharged under honorable conditions due to unfitness. The DD Form 214 that was issued to him at the time of his discharge shows that he was awarded the National Defense Service Medal.
3. Army Human Resources Command Message (Date Time Group 9 February 2004) published implementing instructions for award of the Korea Defense Service Medal. This message specified criteria for the 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 have been physically deployed in the area of eligibility for 30 consecutive or 60 non-consecutive days.
4. Army Regulation 600-8-22 (Military Awards) states that the Korea Defense Service Medal (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 encompasses all land area of the Republic of Korea, and the contiguous water out to 12 nautical miles and the period of eligibility is 28 July 1954 to a date to be determined by the Secretary of Defense.
DISCUSSION AND CONCLUSIONS:
1. At the time of the applicants discharge the award of the KDSM was not in existence and therefore he was not entitled to the award at the time. However, the provisions for award of the KDSM were made retroactive to include the period the applicant served in Korea.
2. The applicant completed a qualifying period of service in Korea from 23 January 1975 through 12 February 1976 for award of the KDSM. Therefore, he is entitled to award of the KDSM and correction of his military records to show this award.
3. It does not appear that the applicant is eligible for any other awards.
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 the KDSM to his DD Form 214.
__________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.
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