IN THE CASE OF:	  

		BOARD DATE:	  26 October 2010

		DOCKET NUMBER:  AR20100011873 


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 (Armed Forces of the United States Report of Transfer or Discharge), dated 30 September 1970, to show he was retired in the rank of major (O-4) and that he was awarded the Silver Star.

2.  The applicant states that he believes the rank shown on his DD Form 214 is incorrect and his Silver Star was omitted.

3.  The applicant provides copies of the following:

* DD Form 214
* Special Orders Number 189 Extract, dated 29 September 1970
* General Orders Number 97, dated 7 April 1951

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.  After completing 5 years, 6 months, and 25 days of active service in the Regular Army (RA), the applicant reenlisted in the RA for 6 years on 8 April 1946 in the rank of corporal (E-4).  He was promoted through the ranks to master sergeant (E-7) effective 31 August 1950.

3.  He was honorably discharged on 4 March 1951 to accept a commission as a second lieutenant (O-1).

4.  The applicant accepted an appointment as an O-1 in the Officer Reserve Corps (Active) effective 5 March 1951.

5.  General Orders Number 97 were published on 7 April 1951 awarding the applicant the Silver Star for heroic action against an armed enemy near Hoengsong, Korea, on 12 February 1951.

6.  On 14 April 1951, General Orders Number 102 were published revoking that section of General Orders Number 97 awarding him the Silver Star and awarding him the Bronze Star Medal with "V" Device.

7.  On 26 April 1951, General Orders Number 128 were published revoking that section of General Orders Number 102 awarding the applicant the Bronze Star Medal with "V" Device.  These orders also revoked that section of General Orders Number 102 that pertained to the revocation of General Orders Number 97 awarding him the Silver Star.

8.  The applicant was promoted to the rank of first lieutenant (O-2) on 18 June 1951 and he was promoted to rank of captain (O-3) on 13 September 1954.

9.  On 30 April 1961, the applicant was released from active duty (REFRAD) in pay grade O-3.

10.  His DD Form 214 for this period of service shows the following awards:

* Korean Service Medal
* National Defense Service Medal
* Presidential Unit Citation
* seven overseas service bars

11.  The applicant was promoted as a U.S. Army Reserve commissioned officer to the rank of major (O-4) effective 12 September 1961.

12.  The applicant enlisted in the RA on 1 May 1964 in the pay grade of E-7.  As a result of an enlisted grade structure conversion that occurred on 1 June 1958, he was promoted to the rank and pay grade of master sergeant (E-8) on 27 July 1966.

13.  On 29 September 1970, Special Orders Number 189 were published discharging him from his enlisted status effective 30 September 1970 and placing him on the Retired List in the rank of major effective 1 October 1970.

14.  Accordingly, on 30 September 1970, the applicant was separated in the rank of master sergeant and he was transferred to the U.S. Army Reserve Control Group (Retired Reserve).  He was placed on the Retired List in the rank of major effective 1 October 1970.  The DD Form 214 he was issued shows his rank as master sergeant.  It also shows he was awarded the Army Good Conduct Medal (3rd Award) and the National Defense Service Medal (1st Oak Leaf Cluster).

15.  The applicant's DA Form 20 (Enlisted Qualification Record) shows he is authorized the following awards:

* American Defense Service Medal
* European-African-Middle Eastern Campaign Medal
* World War II Victory Medal
* Army of Occupation Medal with Germany Clasp
* Army Good Conduct Medal (3rd Award)
* Silver Star
* Korean Service Medal
* Presidential Unit Citation
* National Defense Service Medal (1st Oak Leaf Cluster)
* seven overseas service bars
* Expert Marksmanship Qualification Badge (90mm Tank Gun)
* Sharpshooter Marksmanship Qualification Badge (.45 Caliber Pistol)

16.  His DA Form 20 also shows he participated in six World War II campaigns and five Korean War campaigns while he was in the Army.

17.  Army Regulation 635-5 (Separation Documents) serves as the authority for the preparation of the DD Form 214.  It provides that the DD Form 214 will be prepared to reflect an individual's service as it exists on the date of REFRAD or discharge.  It states to enter the grade in which serving at the time of separation in item 5a (Grade, Rate or Rank).



18.  Army Regulation 600-8-22 (Military Awards) authorizes award of the European-African-Middle Eastern Campaign Medal for qualifying service in the European-African-Middle Eastern theater of operations for the period 7 December 1941 to 8 November 1945.  Army Regulation 600-8-22 also authorizes a bronze service star based on qualifying service for each campaign listed in appendix B and states that authorized bronze service stars will be worn on the appropriate campaign or service medal, including the European-African-Middle Eastern Campaign Medal.  A silver service star is authorized in lieu of five bronze service stars.

19.  Army Regulation 600-8-22 states the United Nations Service Medal is awarded to members of the Armed Forces of the United States dispatched to Korea or adjacent areas on behalf of the United Nations during the period between 27 June 1950 and 27 July 1954.  Personnel awarded the Korean Service Medal automatically establish eligibility for the United Nations Service Medal.

20.  Army Regulation 600-8-22 states the Republic of Korea War Service Medal (ROKWSM) is awarded to members of the U.S. Armed Forces who served in Korea and adjacent waters between 25 June 1950 and 27 July 1953.  The service must have been performed, in part, while on permanent assignment for 30 consecutive days or on temporary duty for 30 consecutive or 60 non-consecutive days within the territorial limits of Korea or the waters immediately adjacent thereto.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was serving in the rank of master sergeant when he was separated on 30 September 1970.  He was placed on the Retired List in the rank of major.  Based on the applicable regulation, the rank shown on his DD Form 214, dated 30 September 1970, is correct.

2.  However, the applicant was awarded the Silver Star in General Orders Number 97.  His DD Form 214 should be corrected to reflect this award.

3.  His records show he is authorized additional awards that are not currently reflected on his DD Form 214, dated 30 September 1970.  These awards include:

* American Defense Service Medal
* European-African-Middle Eastern Campaign Medal with one silver service star and one bronze service star

* World War II Victory Medal
* Army of Occupation Medal with Germany Clasp
* United Nations Service Medal
* Republic of Korea War Service Medal
* Korean Service Medal with one silver service star
* Presidential Unit Citation
* seven overseas service bars
* Expert Marksmanship Qualification Badge (90mm Tank Gun)
* Sharpshooter Marksmanship Qualification Badge (.45 Caliber Pistol)

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ____X____  _____X___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is 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 amending his DD Form 214, dated 30 September 1970, to add the following awards:

* Silver Star
* American Defense Service Medal
* European-African-Middle Eastern Campaign Medal with one silver service star and one bronze service star
* World War II Victory Medal
* Army of Occupation Medal with Germany Clasp
* United Nations Service Medal
* Republic of Korea War Service Medal
* Korean Service Medal with one silver service star
* Presidential Unit Citation
* seven overseas service bars
* Expert Marksmanship Qualification Badge (90mm Tank Gun)
* Sharpshooter Marksmanship Qualification Badge (.45 Caliber Pistol)

2.  The Board further determined 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 amending his DD Form 214, dated 30 September 1970, to show his rank as major (O-4).



      ____________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)                                         AR20100011873



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ABCMR Record of Proceedings (cont)                                         AR20100011873



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