IN THE CASE OF:	  

		BOARD DATE:	  4 March 2010

		DOCKET NUMBER:  AR20090014982 


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 the National Defense Service Medal (NDSM), Overseas Service Ribbon (OSR), Army Good Conduct Medal (AGCM), and Army Service Ribbon (ASR) be added to the list of awards contained on his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge). 

2.  The applicant states, in effect, he served in the United States Army Honor Guard and his duties included unloading flag draped caskets of Soldiers who were killed in action in Vietnam, which was difficult duty. 

3.  The applicant provides no documentation in support of his 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's record shows he was inducted into the Army of the United States and entered active duty on 16 January 1962.  He was trained in and awarded military occupational specialty (MOS) 111.10 (Light Weapons Infantryman) and specialist four/E-4 (SP4/E-4) is the highest rank/grade he attained while serving on active duty.

3.  The applicant's DA Form 24 (Service Record) shows, in Section 4 (Chronological Record of Military Service), that all of his active duty assignments were located in the State of California, and that he received "excellent" conduct and efficiency ratings at all of these assignments.  Section 5 (Service Outside Continental United States) is blank and contains no entry documenting any overseas assignments/service.  

4.  The applicant's record shows he accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice on 
21 October 1963, for being disrespectful to his superior commissioned officer.  His record is void of additional derogatory information or a unit commander disqualification that would have precluded him from receiving the AGCM. 

5.  On 15 January 1964, the applicant was honorably released from active duty (REFRAD) after completing 2 years of active military service with no time lost.  Item 24c (Foreign and/or Sea Service) of the DD Form 214 he was issued at the time contains the entry "0 0 0."  Item 24 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) shows he earned the Marksman Marksmanship Qualification Badge with Rifle Bar during his active duty tenure.  No other awards or decorations are included in item 24.  

6.  Army Regulation 600-8-22 (Military Awards) prescribes the Army's awards policy.  Paragraph 2-10 of the awards regulation prescribes the policy for award of the NDSM.  It states, in pertinent part, that the NDSM is authorized for any period of honorable active duty service performed during the period between
1 January 1961 and 14 August 1974.

7.  Paragraph 5-4 of the same regulation provides guidance on the OSR and paragraph 5-5 contains guidance on the ASR.  These paragraphs confirm both awards were effective 1 August 1981, and that there were no retroactive provisions that allowed their award to members who were not in an active Army status on or after the 1 August 1981 effective date.  


8.  Army Regulation 672-5-1 (Awards), in effect at the time, provided the Army's awards policy, including the criteria for the AGCM.  It stated, in pertinent part, that in order for a member to be eligible for the AGCM, he/she must have received all "excellent" conduct and efficiency ratings and must not have been convicted by a court-martial during the qualifying period.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should be awarded the AGCM and NDSM was carefully considered and found to have merit.  The evidence of record confirms the applicant served on active duty during a qualifying period for the NDSM and that he was eligible to be awarded the AGCM based on his "excellent" conduct and efficiency ratings and the lack of a court-martial conviction and/or unit commander disqualification during his active duty service.  Therefore, it would appropriate to award him the AGCM for his qualifying period of honorable active duty service from 16 January 1964 through 15 January 1966 and the NDSM based on his active duty service during a qualifying period for the award and to add these awards to his DD Form 214 at this time. 

2.  The applicant's contention that the OSR and ASR should be added to his 
DD Form 214 was also carefully considered.  However, these awards were effective on 1 August 1981, and there were no retroactive provisions that allowed award of these ribbons to members who were not in an active status on or after the 1 August 1981, effective date for the awards.  Therefore, there is an insufficient evidentiary basis to support granting this portion of the requested relief. 

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 
awarding him the Army Good Conduct Medal for his qualifying honorable active duty service for the period 16 January 1962 through 15 January 1964; showing his entitlement to award of the National Defense Service Medal; and by issuing a correction to his DD Form 214 that includes these awards.  

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 award of the Overseas Service Ribbon and the Army Service Ribbon.  



      _______ _  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)                                         AR20090014982



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ABCMR Record of Proceedings (cont)                                         AR20090014982



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