IN THE CASE OF:
BOARD DATE: 04 March 2010
DOCKET NUMBER: AR20090014457
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 that his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to add the Legion of Merit (LM), the Korea Defense Service Medal (KDSM), and that he has a service-related disability.
2. The applicant states the LM was awarded at the time of his retirement, the KDSM is a new award, and his service-related disability is a recent determination.
3. The applicant provides copies of his DD Form 214, a DA Form 638 (Recommendation for Award), a DA Form 67-8 (U.S. Army Officer Evaluation Report (OER)), and a Department of Veterans Affairs (VA) rating decision.
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 show that he was commissioned and entered active duty in the Regular Army on 18 March 1979.
3. The applicant received an OER for the period covering 1 November 1979 through 1 July 1980 for his service in a unit located in Korea.
4. On 20 September 1999, Headquarters, U.S. Army Corps of Engineers, Permanent Order Number 51-1 awarded the applicant the LM.
5. On 30 September 1999, the applicant was honorably released from active duty for retirement. He was placed on the Retired List on 1 October 1999.
6. The VA rating decision submitted by the applicant shows that the VA awarded him a 10-percent disability rating effective 1 June 2008.
7. Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, for award of the KDSM. This regulation specifies criteria for the award of the KDSM 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, the contiguous waters out to 12 nautical miles, and all air spaces above the land and water areas; and (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. Only one award of the KDSM is authorized for any individual.
8. Army Regulation 635-5 (Separation Documents), paragraph 21, states that the DD Form 214 is a summary of a Soldiers 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.
DISCUSSION AND CONCLUSIONS:
1. Orders confirm that the applicant was awarded the LM. As such, it would now be appropriate to add this decoration to his DD Form 214.
2. Since the applicant's records confirm that he served in Korea for over 30 consecutive days after 28 July 1954, he is entitled to the KDSM.
3. However, since the applicant's VA rating was not awarded by the military and was awarded after the applicant was released from active duty, there are no provisions in Army regulations to add the applicant's VA ratings to his DD Form 214.
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 the LM and the KDSM to his DD Form 214.
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 adding a VA disability rating 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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