IN THE CASE OF:	  

		BOARD DATE:	  3 December 2009

		DOCKET NUMBER:  AR20090013474 


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, through his Representative in Congress, requests award of the Army Good Conduct Medal and the Korea Defense Service Medal.

2.  The applicant states that his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) does not show his eligibility for the Army Good Conduct Medal or the Korea Defense Service Medal.  He states that his conduct throughout his enlistment was at the standard for award of the Army Good Conduct Medal and that he met the criteria contained in the Department of Defense Federal Register for award of the Korea Defense Service Medal.  He states that he served in the Army honorably and that his family should be proud of the awards that he earned in the service.

3.  The applicant provides a letter from his Representative in Congress addressed to a Department of the Army Congressional Coordinator dated 16 April 2009, a Consent for Release of Personal Records, a copy of his DD Form 214, an excerpt from the Department of Defense Federal Register, and a copy of his Honorable Discharge Certificate.

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 are not available to the Board for review.  A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center in 1973.  It is believed that the applicant’s records were lost or destroyed in that fire.  This case is being considered using reconstructed records, which primarily consist of the documents provided by the applicant.

3.  On 28 September 1956, the applicant enlisted in the Regular Army in Philadelphia, Pennsylvania, for 3 years in the pay grade of E-1.  He successfully completed his training as a crypto specialist.

4.  The applicant was honorably released from active duty (REFRAD) on 24 August 1959 under the provisions of Army Regulation 635-206, paragraph 10, to accept employment of a seasonal nature and he was transferred to the XXI U.S. Army Corps (Reserve) to complete his service obligation.

5.  Item 24c (Foreign and/or Sea Service) of the DD Form 214 that he was furnished at the time of his REFRAD shows that he had 1 year, 2 months, and 6 days of foreign service.  However, his DD Form 214 does not show the theater in which he served.

6.  Item 26 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) on his DD Form 214 contains the entry "None."

7.  The Department of Defense Federal Register excerpt that the applicant submitted in support of his request provides the criteria for award of the Korea Defense Service Medal.

8.  Army Regulation 672-5-1 (Military Awards) in effect at the time, provided policy and criteria concerning individual military decorations.  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 and, for the first award only, upon termination of service on or after 27 June 1950 of less than 3 years but more than 1 year.  At the time, a Soldier's conduct and efficiency ratings must have been rated as "excellent" for the entire period of qualifying service except that a service school efficiency rating based upon academic proficiency of at least "good" rendered subsequent to 11 November 1956 was not disqualifying.  However, there was no right or entitlement to the medal until the immediate commander made a positive recommendation for its award and until the awarding authority announced the award in general orders.

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.

   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)  wounded or injured in the line of duty and required medical evacuation from the area of eligibility; or

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

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should be awarded the Army Good Conduct Medal and the Korea Defense Service Medal.

2.  His contentions have been noted.  However, there is no evidence in the records that were submitted by the applicant that shows he meets the criteria contained in the applicable regulations for either of the two awards that he is requesting.

3.  He has submitted no evidence to show that had a qualifying period of service in the Republic of Korea that would qualify him for award of the Korea Defense Service Medal or that his conduct and efficiency ratings were "excellent" for the entire period of qualifying service which may have qualified him for the Army Good Conduct Medal.  In the absence of evidence to the contrary, it must be presumed that what the Army did in his case was correct.

4.  In order to justify correction of a military record, the applicant must show or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

5.  In view of the foregoing, there is no basis for granting the applicant’s request.

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)                                         AR20090013474



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090013474



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1