IN THE CASE OF:	  

		BOARD DATE:	  19 October 2010

		DOCKET NUMBER:  AR20100012185 


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) to show:

* he was awarded the Air Medal
* his rank and pay grade as sergeant (E-5)
* his Congo assignment

2.  The applicant states he was awarded the Air Medal for time he spent in the Congo and he was promoted to the pay grade of E-5 before he was discharged.

3.  The applicant provides:

* his DD Form 214
* a copy of a citation showing he was awarded the Air Medal
* a photograph of a Soldier wearing sergeant (E-5) rank

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.  On 5 June 1962, the applicant enlisted in the Army for 3 years, in the pay grade of E-1.  He completed training as a light weapons infantryman and he arrived in Korea on 2 January 1963.  He was assigned to Company E (Rifle), 14th Infantry Regiment. 

3.  The applicant returned to the U.S. on 9 January 1964 and was assigned to Company A, 1st Battalion, 23rd Infantry Regiment, 2nd Infantry Division, Fort Benning, Georgia.  

4.  On 5 February 1965, he was recommended for award of the Air Medal for meritorious achievement while participating in aerial flight in the Republic of the Congo from period 24 November to 27 November 1964.  The recommendation for the award was approved and on 10 May 1965, the applicant's commanding officer (CO) was forwarded the official citation and certification for presentation to the applicant.  His CO was informed that announcement of the award would appear in Department of the Army General Orders (DAGO) within 60 days.

5.  A review of the available record does not contain the orders awarding him the Air Medal.

6.  His DA Form 24 (Service Record) shows the following temporary (T) and permanent (P) promotions and dates of promotions:

* Private, E-2, (P), 5 October 1962
* PFC, E-3 (P), 6 February 1963
* Specialist, E-4 (T), 18 October 1963
* Specialist, E-4, (P), 18 October 1964

7.  The applicant was honorably released from active duty on 4 June 1965.  His DD Form 214 shows the following awards:

* Army Commendation Medal
* Good Conduct Medal
* Marksman Marksmanship Qualification Badge (Rife M-1)
* Sharpshooter Marksmanship Qualification Badge with Pistol Bar
* Expert Marksmanship Qualification Badge (Rifle M-70)

8.  His DD Form 214 also shows he was discharged in the rank and pay grade of specialist (E-4).  Item 12c (Foreign and/or Sea Service) of his DD Form 214 shows "Korea," 1 year and 26 days.

9.  A review the available record does not indicate that orders were published promoting him to the pay grade of E-5.

10.  The applicant submits a photograph of a Soldier wearing the rank of sergeant/E-5.

11.  Army Regulation 600-8-22 (Military Awards) states the Air Medal is awarded in time of war for heroism and for meritorious achievement or service while participating in aerial flight.  This award is primarily intended for personnel on flying status, but may also be awarded to those personnel whose combat duties require them to fly; for example, personnel in the attack elements of units involved in air-land assaults against an armed enemy.  

12.  Army Regulation 600-8-22 states the National Defense Service Medal is awarded for honorable active service for any period between 27 July 1950 and 27 July 1954, 1 January 1961 and 14 August 1974, 2 August 1990 and
30 November 1995, and 11 September 2001 and a date to be determined.  

13.  Army Regulation 600-8-22 states 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 (1) encompasses all land area of the Republic of Korea and the contiguous water out to 12 nautical miles and (2) all air spaces above the land and water area.  The period of eligibility is 28 July 1954 to a date to be determined by the Secretary of Defense.  

14.  Army Regulation 635-5 (Separation Documents) is the authority for preparing the DD Form 214.  The regulation then in effect states, in pertinent part, for item 24c (Foreign and/or Sea Service) enter total active duty outside continental limits of the United States for the period covered by the DD Form 214 and the last oversea theater where service was performed.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions and supporting documents have been considered. As previously stated, there are no orders in the applicant's records and he has 

not submitted sufficient evidence to show he was promoted to the pay grade of E-5 prior to separation.  Therefore, the rank and pay grade shown on his 
DD Form 214 should not be changed.

2.  However, based on the available record his DD Form 214 should be corrected to show he was awarded the Air Medal.  He is also authorized the National Defense Service Medal and the Korea Defense Service Medal

3.  Although the number of days shown on his DD Form 214 for foreign and/or sea service appear to be correct, Korea was not the last theater in which the applicant served.  Accordingly, item 12c on his DD Form 214 should be corrected to show the last theater in which he served was AMEA (Africa-Middle Eastern Area).

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 amending:

   a.  Item 26 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons) of his DD Form 214 to add the Air Medal, National Defense Service Medal, and Korea Defense Service Medal; and

   b.  Item 12c to show the entry "AMEA."

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 amending his DD Form 214 to show he was separated in the rank and pay grade as sergeant (E-5).




      _______ _  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)                                         AR20100012185



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100012185



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1