IN THE CASE OF:	  

		BOARD DATE:	  4 May 2010

		DOCKET NUMBER:  AR20090018170 


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 his DD Form 214 (Report of Separation from Active Duty) be corrected to show his rank and pay grade as specialist five (SP5)/E-5 and to add the "United Nations Korean Medal," Korean Service Medal, Korean Defense Service Medal, and Republic of Korea Presidential Unit Citation.

2.  The applicant states he had not noticed these errors and omissions before, but now needs them corrected to join the Veterans of Foreign Wars.

3.  The applicant provides discharge orders and his DD Form 214.

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 could not be located and are presumed to have been destroyed in the fire at the records repository at St. Louis, Missouri, in 1973.  However, the records provided by the applicant are sufficient to consider the applicant's request.

3.  The available military records show the applicant was inducted in the Army of the United States on 20 April 1954, was promoted to the rank of specialist 
second class, and was honorably released from active duty on 14 February 1956 and transferred to the U.S. Army Reserve.

4.  On 1 April 1962, the applicant was honorably discharged from the U.S. Army Reserve at the expiration of his term of service.  His rank was listed as SP5 on his discharge orders.  His DD Form 214 shows his last unit of assignment was at Army Post Office (APO) 59 (verified as being in Korea).

5.  Army Regulation 600-8-22 (Military Awards) provides for award of the Korea Defense Service Medal.  This regulation specifies criteria for the award of the Korea Defense Service Medal 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 Korea Defense Service Medal is authorized for any individual.

6.  Army Regulation 600-8-22 provides for the award of the United Nations Service Medal to Soldiers who were dispatched to Korea or adjacent areas for service on behalf of the United Nations in the action in Korea between 27 June 1950 and 27 July 1954.  The service must be under either of the following conditions:

	a.  Within the territorial limits of Korea or the waters immediately adjacent thereto or in the air over Korea or over such waters.

	b.  The service prescribed must have been performed while serving with any unit as specified below:

		(1)  while on an assignment to such unit for any period between the dates specified above;

		(2)  while attached to such a unit for a period of 30 days consecutive or nonconsecutive, between the dates specified above.

		(3)  while in active combat against the enemy under conditions other than those prescribed in (1) and (2) above if a combat decoration has been awarded or an individual certificate testifying to such combat service has been furnished by the commander of an independent force or a division, ship, or air group, or comparable or higher unit.

7.  Army Regulation 600-8-22 provides for award of the Korean Service Medal.  The regulation states that the Korean Service Medal is awarded for qualifying service in the theater of operations between 27 June 1950 and 27 July 1954.  To be eligible a Soldier must have been permanently assigned to the unit or on temporary duty for 30 consecutive days or 60 nonconsecutive days.

8.  Army Regulation 600-8-22 provides that the Korean government awards the Republic of Korea Presidential Unit Citation.

9.  The enlisted rank structure of the Army for the period 1 July 1955 to 31 May 1958 showed that pay grade E-5 was either rank sergeant or specialist 
second class.  This was changed on 1 June 1958.  At that time the rank for pay grade E-5 changed to sergeant or SP5.

10.  The Board begins its review of a case with a presumption of regularity, that what the Army did was correct.  It is up to the applicant to show otherwise.

DISCUSSION AND CONCLUSIONS:

1.  Unfortunately, while the Army Post Office listed on the applicant's DD Form 214 confirms he was in Korea, there is no evidence to show how long he was stationed in Korea or in what status (assigned or attached, temporary duty, consecutive duty or nonconsecutive duty, etc.).

2.  Since all the service awards requested by the applicant require assignment to Korea for specified periods of time, there is insufficient documentation with which to add these awards.

3.  The Republic of Korea Presidential Unit Citation is awarded to units for specific periods of service.  Since the dates of the applicant's assignment or attachment to a unit in Korea are not a matter of record, there is insufficient evidence with which to grant this portion of his request.

4.  As for his rank, at the time of the applicant's release from active duty, pay grade E-5 was either a sergeant or specialist second class.  Therefore, his rank was properly recorded on his DD Form 214.  Prior to the applicant's discharge from the Army Reserve, the rank structure was changed and the rank for pay grade E-5 was changed to SP5.  Therefore, his discharge order is also correct.

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)                                         AR20090018170



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090018170



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1