IN THE CASE OF:	

		BOARD DATE:	17 December 2009  

		DOCKET NUMBER:  AR20090010843 


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 award of the Army Good Conduct Medal and the following corrections to his DD Form 214 (Report of Separation From the Armed Forces of the United States) with an effective date of separation of 22 May 1952: change his military occupational specialty (MOS) to show "Deep Sea Diver," add two commendation medals, add the Republic of Korea Presidential Unit Citation, and correct his foreign service credit.  

2.  The applicant states his service started in the 101st Airborne Division and then he went to Fort Eustis, VA, for school.  He then went to Okinawa where he worked as a diver.  He states it was on-the-job training.  He states this information is missing from his DD Form 214 and it seems his DD Form 214 appears to start halfway through his Korean service.  He states he needs to gain access to medical personnel who understand diver problems and possibly can help him with his problems which are joint and bone discomfort.  He states he applied for disability with the Department of Veterans Affairs (VA), but has not received a final decision yet.

3.  The applicant provides, in support of his application, copies of two letters of commendation; orders rating him a qualified marine diver, second class; his DD Form 214; a letter to the VA; a statement concerning his medical condition; a certificate from the U.S. Army Divers Association; a history of Army divers (with photographs); and a letter to Callerye Publications with an article from Sea Classics.

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 military records were lost or destroyed in a fire at the National Personnel Records Center in 1973.  The records available to the Board were provided by the applicant and are sufficient for the Board to conduct a fair and impartial review of this case.  The primary record available to this Board is the applicant’s DD Form 214.  

3.  The applicant's military personnel records show he enlisted in the Regular Army on 23 August 1948 for a period of 3 years.  

4.  The applicant's MOS shown on his DD 214 appears to be 3080 (Marine Engineman).  He attended a course of instruction for Marine Engine Repairman at the Transportation School at Fort Eustis, VA during the period from December 1948 to February 1949.

5.  50th Engineer Port Construction Company Orders Number 44, dated 
18 October 1950, rated the applicant as a qualified marine diver, second class.  However, these orders did not award him an MOS for Diver (1454).

6.  A letter, dated 8 January 1951, from the 3rd Logistical Command, commended the Commander, 50th Engineer Port Construction Company and a demolition team of the unit under the command of first lieutenant K----R.  The applicant's name is not mentioned in this letter.

7.  A letter, dated 28 July 1951, to the Commander, 50th Engineer Port Construction Company, commended one officer and seven enlisted for the successful recovery of an enemy aircraft that had crashed deep in enemy territory.  The applicant is listed as one of the seven enlisted Soldiers.

8.  A record of the history of the applicant's assignments during his service was not available for review.

9.  On 22 May 1952, the applicant was released from active duty.  He had completed 3 years and 9 months of active service that was characterized as honorable.  He had no days of time lost.

10.  Item 26 (Foreign and/or Sea Service) of the applicant's DD Form 214 is not entirely legible.  It clearly shows 2 years and 21 days; however, the number of months is unreadable.  Item 27 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) shows he is authorized the Korean Service Medal with 3 bronze service stars and the "Presidential Unit Citation (ROK [Republic of Korea]).  Item 27 does not show the award of the Army Good Conduct Medal.
 
11.  Army Regulation 600-65 (Military Awards) (later superseded by Army Regulation 672-5-1), in effect at the time, provided policy and criteria concerning service medals.  It stated that the Army Good Conduct Medal was awarded for each 3 years of continuous enlisted active Federal military service completed on or after 27 August 1940.  At the time, a Soldier's conduct and efficiency ratings must have been rated as "excellent" for the entire period of qualifying service and there must have been no convictions by court-martial.

12.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his MOS on his DD form 214 should be shown as a diver.  He contends he needs to gain access to medical personnel who understand diver problems.  He contends that two commendation medals and the Republic of Korea Presidential Unit Citation should be added to his DD Form 214.  He contends that he has additional overseas service than that is not currently shown on his DD Form 214.  He contends that he should be awarded the Army Good Conduct Medal.


2.  Although the orders, dated 18 October 1950, rated the applicant as a qualified marine diver, second class, they did not award him the diver MOS.  There are no orders available awarding him a diver MOS.  The ABCMR does not change records solely to provide for eligibility for benefits from another agency.  Therefore, there is insufficient evidence to change his MOS on his DD Form 214.

3.  Only one of the commendation letters identified the applicant by name.  Letters of commendation do not award medals.  Only those decorations and awards listed in Army Regulation 600-65 are included on a Soldier's 
DD Form 214.  Therefore, there are no provisions for entering letters of commendation on a DD Form 214.

4.  The Republic of Korea Presidential Unit Citation, shown as Presidential Unit Citation (ROK), is already entered in item 27 of the applicant's DD Form 214.  Therefore, there is no correction or addition to be made.

5.  Due to the non-availability of the applicant's history of assignments, it is not possible to determine whether all of his foreign service is included in item 26 of his DD Form 214.

6.  The applicant could have received his first award of Army Good Conduct Medal on 22 August 1951 upon completion of 3 years if his conduct and efficiency ratings had been rated as "excellent" for the entire period.  Due to the non-availability of his military records it is not possible to verify his eligibility for the award.  Therefore, in must be presumed that what the Army did was correct in not awarding him the Army Good Conduct Medal upon his completion of continuous enlisted active Federal military service.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X___  ___X____  ___X___  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.






      _______ _   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)                                         AR20090010843





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ABCMR Record of Proceedings (cont)                                         AR20090010843



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