IN THE CASE OF:	

		BOARD DATE:	  10 December 2009

		DOCKET NUMBER:  AR20090010587 


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 correction of her DD Form 214 (Certificate of Release or Discharge from Active Duty) to include her award of the Legion of Merit, awarding her the Korea Defense Service Medal, and changing her nearest relative.

2.  The applicant states her Legion of Merit was omitted from her DD Form 214, that the Korea Defense Service Medal was authorized after her release from active duty, and that her spouse passed away in 2008.  With the death of her spouse, the applicant would like to list her brother as her nearest relative.

3.  The applicant provides copies of her DD Form 214; the award orders for the Legion of Merit, dated 6 January 1992; a National Personnel Records Center letter, dated 30 September 2004; and her husband's Certificate of Death, issued on 31 July 2008, in support of her 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.  The applicant enlisted in the U.S. Army Reserve (USAR) on 3 June 1968 and she was commissioned as a Regular Army (RA) Army Nurse Corps officer on 15 December 1969.

3.  On 31 January 1992, she retired as a lieutenant colonel, having served on active duty in an enlisted status for 1 year, 6 months, and 11 days and as a commissioned officer for 22 years, 1 month, and 16 days.  

4.  Her DD Form 214 shows following pertinent information:

   a.  item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) show her authorized awards as the Army Service Ribbon, Meritorious Service Medal with two Oak Leaf Clusters, Army Commendation Medal with one Oak Leaf Cluster, Army Good Conduct Medal, National Defense Service Medal with one bronze service star, Overseas Service Medal, Expert Field Medical Badge, and the Marksman Marksmanship Qualification Badge with Rifle Bar; 

   b.  item 12f (Foreign Service) shows she had 3 years, 11 months, and 6 days of foreign service; and

   c.  item 19b (Nearest Relative) shows the entry "C------- J. R---."

5.  The applicant's Officer Record Brief (ORB) shows foreign service in Korea for 11 months, ending in July 1975; and in Germany for 36 months, ending in June 1983.

6.  Headquarters, United States Army Health Service Command, Fort Sam Houston, TX, Permanent Orders 2-4, dated 6 January 1992, awarded the applicant the Legion of Merit for exceptionally meritorious service from
31 January 1982 to 31 January 1992.

7.  A 30 September 2004 National Personnel Records Center letter notified the applicant that they had verified she qualified for award of the Korea Defense Service Medal and the medal would be issued to her.

8.  The Certificate of Death provided by the applicant shows her spouse, C------- J. R---, died on 26 July 2008.
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 period of eligibility is from 28 July 1954 to a date to be determined by the Secretary of Defense. 

10.  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 establishes standardized policy for preparing and distributing the DD Form 214.  It states the DD Form 214 is a summary of a Soldier's most recent period of continuous active duty and provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge (emphasis added).

DISCUSSION AND CONCLUSIONS:

1.  The applicant states her award of the Legion of Merit was omitted from her DD Form 214; that she is entitled to award of the Korea Defense Service Medal; and that with passing of her spouse in 2008, she would like to list her brother as her nearest relative.

2.  The applicant's DD Form 214 omits her end of service award of the Legion of Merit.  Therefore, it would be appropriate to correct her DD Form 214 to show this award.

3.  The applicant served a qualifying period of service in the Republic of Korea for entitlement to the Korea Defense Service Medal.  Therefore, it would be appropriate to correct her DD Form 214 to show this medal.

4.  A DD Form 214 is issued based on information as it was on the date of separation from active duty.  The applicant provided the name of her spouse as the nearest relative to be named in item 19b.  There is no error or injustice and there is no provision in changing the correct information at the time of the preparation of the DD Form 214.  Therefore, there is no basis for granting this portion of the applicant's requested relief.

5.  It is recommended that the applicant contact the U.S. Army Human Resource Command, St. Louis, MO to ensure her retired records are current and to properly make any beneficiary or contact changes in light of the death of her spouse.
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 adding to item 13 of her DD Form 214 the Legion of Merit and the Korea Defense Service Medal.

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 changing the nearest relative entry in item 19b of her 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.

ABCMR Record of Proceedings (cont)                                         AR20090010587



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ABCMR Record of Proceedings (cont)                                         AR20090010587



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