BOARD DATE:	  4 January 2011

		DOCKET NUMBER:  AR20100017218 


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, correction to his separation documents to show he served in Korea.

2.  He states he served in the Army in Korea from 1951 to 1952 and he is not getting credit for this time.  He was 15 years of age when he joined the Army.  The Department of Veterans Affairs (VA) has given him credit for his 2nd and 3rd enlistments, but not for his 1st.  He has been battling the VA since 2004 to receive his disability.  

3.  He provides:

* 1952 and 1956 DD Forms 214 (Report of Separation from the Armed Forces of the United States)
* Certificate of Military Service from the National Personnel Record Center
* Letter from the VA
* Korean War Veterans & the VA Information Paper

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 are not available to the Board for review.  A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center in 1973.  It is believed his Army records were lost or destroyed in that fire.  However, there were sufficient documents remaining in a reconstructed record and documentation submitted by the applicant for the Board to conduct a fair and impartial review of this case.

3.  He enlisted in the Regular Army in pay grade E-1 in January 1951, for            3 years.  He was honorably discharged on 7 May 1952 and issued a DD Form 214.  The DD Form 214 indicates he was separated upon his expiration term of service.  He was credited with 1 year, 10 months, and 14 days of net active.  

4.  Item 26 (Decorations, Medal, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of this form lists the Korean Service Medal with five bronze service stars.

5.  His available records show he was inducted in the Army of the United States on 23 September 1954.  His DD Form 214 for this period shows his date of birth as 21 November 1936.  DA Forms 1 (Morning Report) dated 9, 18, and 26 May 1955 show he was stationed at Fort Richardson, Alaska.  He was honorably discharged for the purpose of reenlistment on 14 May 1956 and issued a DD Form 214.  He was credited with 1 year and 11 days of foreign service.  His available records do not identify the location of the foreign service but it was apparently in Alaska.

6.  He reenlisted on 15 May 1956 for 3 years and he was discharged on 7 May 1958.

7.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  The purpose of the separation document is to provide the individual with documentary evidence of their military service.  From 1951 to 1962, item 26 (Foreign and/or Sea Service) of the DD Form 214 showed the total active duty outside the continental limits of the United States for the period covered by the DD Form 214.  During the 

Vietnam War, item 12 of the DD Form 214 showed the total active duty outside the continental limits of the United States for the period covered by the DD Form 214 and the last overseas theater in which service was performed (e.g. Foreign and/or Seas Service USAREUR or USARV). 

8.  Army Regulation 600-8-22 (Military Awards) states the Korean Service Medal is awarded for qualifying service within the territorial limits of Korea between 27 June 1950 and 27 July 1954.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence shows he was issued a DD Form 214 for a period of active duty from January 1951 to 7 May 1952.  This form shows he was credited with 1 year, 9 months, and 12 days of foreign service and awarded the Korean Service Medal.  There is no evidence in his available records and he has failed to provide compelling evidence to show the actual dates of service in Korea.  

2.  The available evidence shows he was inducted in Army of the United States on 23 September 1954.  He was discharged for reenlistment on 14 May 1956 and issued a DD Form 214.  He served continuously on active duty until he was discharged on 7 May 1958.  The available evidence does not show he served in Korea during his period of service from September 1954 to May 1958. 

3.  Even if his dates of service in Korea could be established, there was no requirement to list the country of foreign service on the DD Form 214 at the time. Therefore, no basis has been established to show this foreign service on his DD Form 214 for the period ending 7 May 1952.  In view of the foregoing, there is no basis for granting the applicant's request.

4.  However, the fact he received the Korean Service Medal with five bronze service stars is evidence that he did serve in Korea during the Korean War and that he participated in five campaigns.  In addition, while the available evidence does indicate that he was a minor during his first enlistment, his DD Form 214 for the period ending 7 May 1952 indicates he was separated for expiration of his term of service.  It does not indicate that his service was voided or that he was separated early for minority.  Since his military records are not available, it is difficult to make a definite assessment of the reason for the ending of his first enlistment; nevertheless, the available evidence indicates he should be credited with military service during that period.  That being said, the Army has no jurisdiction over the Department of Veterans Affairs.  


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)                                         AR20100017218



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ABCMR Record of Proceedings (cont)                                         AR20100017218



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