IN THE CASE OF:	  

		BOARD DATE:	  29 July 2010

		DOCKET NUMBER:  AR20100006938 


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 correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his foreign service in Korea from 11 September 1995 to 29 September 1997 and award of the Legion of Merit, Korea Defense Service Medal, and Humanitarian Service Medal (2nd Award).  

2.  The applicant states that he was awarded the Legion of Merit and would also like it reflected on his DD Form 214.  He also states the following:

	a.  He served in Korea from 11 September 1995 to 29 September 1997; however, his foreign service is not shown on his DD Form 214.  Additionally, the Korea Defense service Medal was approved after his retirement from the Army.

	b.  He served as an operations officer on the Fifth Army Crisis Team (CAT) in support of Del Rio and South Texas Floods from 21 October 1998 to 
13 November 1998 as shown on his DA Form 67-8 (Officer Evaluation Report) for the period 5 August 1998 through 4 August 1999.  His first award of the Humanitarian Service Medal was in support of Mid-West Floods/St. Louis flooding during 1993.

3.  The applicant provides the following documents:

* A copy of his DD Form 214, dated 31 July 2000
* A copy of a DA Form 638 (Recommendation for Award) and a certificate, dated 11 August 2000, showing award of the Legion of Merit
* Copies of three certificates of training
* Copies of Orders R-02-001349A01, R-04-002735, and R-02-001349, dated 5 September 1997, 29 April 1997, 22 February 1995, respectively
* A copy of an endorsement, dated 11 September 1995
* Copies of his DA Forms 67-8 for the periods 12 August 1995 through 29 March 1996, 30 march 1996 through 29 March 1997, 30 March 1997 through 4 August 1997, and 5 August 1998 through 4 August 1999
* A copy of a certificate, dated 14 November 1997, showing award of the Meritorious Service Medal
* A copy of Table C-1 (Approved Humanitarian Service Medal Operations), Army Regulation 600-8-22 (Military Awards), dated 11 December 2006

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.  Having had prior enlisted service, the applicant's records show he was appointed as a second lieutenant in the U.S. Army Reserve and executed an oath of office on 18 July 1975.  He entered active duty on 16 May 1983, served in various staff and leadership positions, and attained the rank/grade of lieutenant colonel (LTC)/O-5.

3.  He was honorably retired on 31 July 2000 and placed on the retired list in his retired rank/grade of LTC/O-5 on 1 August 2000.  The DD Form 214 he was issued shows he completed 20 years, 6 months, and 5 days of creditable active service.  This form also shows:

	a.  Item 12f (Foreign Service) shows the entry "0000  00  00"; 

	b.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) shows the following awards:

* Meritorious Service Medal (2nd Award)
* Army Commendation Medal
* Army Achievement Medal
* Army Superior Unit Award
* Good Conduct Medal
* Army Reserve Components Achievement Medal
* National Defense Service Medal (2nd Award)
* Humanitarian Service Medal
* Armed Forces Reserve Medal (2nd Award)
* Army Service Ribbon
* Overseas Service Ribbon (2nd Award)
* Army Reserve Components Overseas Training Ribbon (3rd Award)
* Bronze Excellence in Competition Badge Pistol Shot

4.  His Officer Record Brief, reassignment orders, awards, OERs, and certificates of training confirm he served in Korea from 8 September 1995 to 2 October 1997, a period of 2 years and 24 days.

5.  Headquarters, Fifth U.S. Army, Fort Sam Houston, TX, Permanent Orders 224-02 dated 11 August 2000 awarded him the Legion of Merit for meritorious service from 31 July 1990 to 31 July 2000.

6.  The applicant's records contain a memorandum, issued by the U.S. Total Army Personnel Command, Alexandria, VA, on 17 August 1994, awarding various units and/or individuals the Humanitarian Service Medal for participating in relief operations during the Mississippi River Flood in various States between July 1993 and September 1993. 

7.  He submitted the following documents:

	a.  A copy of Orders R-04-002735, dated 29 April 1997, reassigning him to Headquarters, Fifth U.S. Army, Fort Sam Houston, TX, effective 2 October 1997.

	b.  A copy of his OER for the period from 5 August 1998 through 4 August 1999 wherein his rater remarked that "Serving as an Operations Officer on the Crisis Action Team (CAT), he served in the Emergency Operations Center (EOC) for the Del Rio and South Texas Floods." 

	c.  Copies of various certificates showing he completed several training courses in Korea.

8.  Army Regulation 600-8-22 provides for the following awards:

	a.  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.  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.  The period of eligibility is from 28 July 1954 to a date to be determined by the Secretary of Defense.  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.

	b.  The Humanitarian Service Medal is awarded to members who distinguished themselves by meritorious direct participation in a Department of Defense approved significant military act or operation of a humanitarian nature.  A service member must be on active duty at the time of direct participation, must have directly participated in the humanitarian act or operation within the designated geographical area of operation and within specified time limits, and must provide evidence that substantiates direct participation.  Direct participation is defined as being physically present at the designated location, having directly contributed to and influenced the action.  Specifically excluded from eligibility are Service members or elements remaining at geographically separate locations or who were assigned to the location but did not make a direct contribution to nor influenced the action.  Designated location is the immediate site(s) of the humanitarian operations as defined by the Presidential request for assistance in the United States or the Department of State for overseas areas.  When appropriate, the local commander in his or her recommendation may propose specific clarification of designated boundaries based on the intent of the Presidential or Department of State request.

9.  Table C-1 of Army Regulation 600-8-22 shows the following operations were approved by the Department of Defense as qualifying for award of the Humanitarian Service Medal:

* Mississippi River Flood Operation, 9 July 1993 to 20 August 1993, States of IL, IA, MS, NE, WI, KS, and SD
* Central and South TX Flood Relief Operation, 21 October 1998 to 13 November 1998

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DD Form 214 should be corrected to show award of the Legion of Merit, Korea Defense Service Medal, and a second award of the Humanitarian service Medal, and his foreign service.

2.  The evidence of records shows he completed 2 years and 24 days of foreign service in Korea from 8 September 1995 to 2 October 1997; therefore, he is entitled to correction of his DD Form 214 to show this period of foreign service.  Furthermore, this period of service qualifies him for award of the Korea Defense Service Medal and correction of his DD Form 214 to show it.

3.  Permanent orders awarded him the Legion of Merit for meritorious service which is not shown on his DD Form 214; therefore, he is entitled to correction of his DD Form 214 to show this award.

4.  With respect to a second award of the Humanitarian Service Medal, the applicant's service as an operations officer on the Fifth Army CAT during the Central and South TX Flood Relief Operation is noted.  However, a service member must have directly participated in the humanitarian act or operation within the designated geographical area of operation and within specified time limits and must provide evidence that substantiates direct participation.  The applicant's OER does not clearly establish the location of the EOC or CAT during the relief operation and whether he, as an operations officer, was physically present at the designated location or if his actions directly influenced the events that occurred.  Therefore, there is insufficient evidence to show he qualified for a second award of the Humanitarian Service Medal.

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: 

	a.  deleting from item 12f of his DD Form 214 the entry "0000  00  00" and adding the entry "0002 00  24"; and 

	b.  adding to item 13 of his DD Form 214 the Legion of Merit and Korea Defense Service Medal.

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 a second award of the Humanitarian Service Medal.



      __________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)                                         AR20100006938



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ABCMR Record of Proceedings (cont)                                         AR20100006938



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