BOARD DATE:	  23 June 2011

		DOCKET NUMBER:  AR20100029788 


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 his rank/grade as specialist four (SP4)/E-4 vice private first class (PFC)/E-3 and to show awards of the Korea Defense Service Medal and the Marksmanship Qualification Badge with Machinegun Bar.

2.  The applicant states he had no knowledge of the errors on his DD Form 214 until he received his service record from the National Personnel Records Center (NPRC).

3.  The applicant provides:

* Special Orders Number 161, dated 10 June 1970
* a letter from the NPRC, dated 10 November 2010

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 was inducted into the Army of the United States on 7 November 1968 in the rank/grade of private (PV1)/E-1.  He was trained and awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  Special Orders 56, issued by Headquarters, U.S. Army Training Center, Infantry, Fort Lewis, WA, dated 25 February 1969, awarded him the First Class Gunner (Sharpshooter) Marksmanship Qualification Badge with Machinegun Bar for qualifying with the machine gun on 19 February 1969.

4.  Upon successful completion of advanced individual training, he was advanced to private (PV2)/E-2, effective 7 March 1969, in accordance with Army Regulation 600-200 (Enlisted Personnel Management System), paragraph 7-19.

5.  He served in Korea from 16 April 1969 to 10 June 1970 while assigned to the 2nd Infantry Division.

6.  Special Orders Number 157, issued by Headquarters, 2nd Infantry Division, dated 6 June 1969, advanced him to PFC, effective 30 May 1969.

7.  On 18 July 1969, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for sleeping while on guard duty on the same date.

8.  Item 33 (Appointments and Reductions) of his DA Form 20 (Enlisted Qualification Record) shows the highest rank/grade he held while serving on active duty was PFC/E-3.

9.  Item 38 (Record of Assignments) of his DA Form 20 shows he received all "excellent" conduct and efficiency ratings throughout his service.  His record is void of a commander's disqualification for award of the Army Good Conduct Medal.

10.  Special Orders Number 117, issued by Headquarters, 2nd Infantry Division, dated 27 April 1970, reassigned him to the U.S. Army Transfer Station, Fort Lewis, for separation processing.  His rank is shown as PFC.

11.  His record contains a DA Form 137 (Installation Clearance Record), dated 3 June 1970, that shows his rank as SP4.  The remarks section of this form also contains the entry "This EM [enlisted member] is recommended for the Good Conduct Medal.  Conduct:  Excellent, Efficiency:  Excellent."  This form is signed by the applicant's commander.

12.  A DA Form 3327 (Individual/Organizational Clothing and Equipment Record), dated 10 June 1970, shows the applicant's rank as PFC.

13.  On 10 June 1970, he was honorably released from active duty and he was transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) to complete his remaining Reserve obligation.   He completed 1 year, 7 months, and 4 days of total active service with no time lost.

14.  Items 5a (Grade, Rate or Rank) and 5b (Pay Grade) of his DD Form 214 shows the entries "PFC" and "E-3," respectively.  He authenticated this form by placing his signature in the appropriate block.

15.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows the:

* National Defense Service Medal
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14)
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16)
* Armed Forces Expeditionary Medal (Korea)
* two overseas service bars

16.  There are no orders in the applicant's record that show he was advanced to SP4/E-4.

17.  The applicant provides a copy of Special Orders Number 161, issued by Headquarters, U.S. Army Personnel Center, Fort Lewis, dated 10 June 1970, wherein he was released from active duty and transferred to the USAR.  These orders show his rank as SP4.

18.  Army Regulation 672-5-1 (Military Awards), in effect at the time, provided that the Army Good Conduct Medal was awarded to individuals who completed a qualifying period of active duty enlisted service.  For the first award only, an individual is eligible upon termination of service on or after 27 June 1950 of less than 3 years but more than 1 year, ending with the termination of a period of Federal military service.  The enlisted person must have had all "excellent" conduct and efficiency ratings and no convictions by a court-martial.

19.  Army Regulation 600-8-22 (Military Awards) provides that 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 period of eligibility is 28 July 1954 to a date to be determined by the Secretary of Defense.

20.  Army Regulation 600-200, in effect at the time, stated the promotion of enlisted personnel to grades E-3 through E-9 was announced in routine orders.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant served in Korea during a qualifying period for award of the Korea Defense Service Medal.  Therefore, he is entitled to correction of his DD Form 214 to show this award.

2.  Special orders awarded him the Sharpshooter Marksmanship Qualification Badge with Machinegun Bar which is not shown on his DD Form 214.  Therefore, he is entitled to correction of his DD Form 214 to show this award.

3.  Notwithstanding the NJP he received on 18 July 1969 for sleeping on duty, he served honorably from 7 November 1968 through 10 June 1970.  He has no record of a court-martial conviction that would disqualify him for award of the Army Good Conduct Medal and he received "excellent" conduct and efficiency ratings throughout his military service.  Therefore, it would be appropriate to award him the first award of the Army Good Conduct Medal and to correct his DD Form 214 to show this award.

3.  With respect to the rank/grade of SP4/E-4 issue, his record shows he was advanced to PFC/E-3 on 30 May 1969.  Although his record contains a few documents that show his rank as SP4, there are no orders to show he was ever advanced to SP4/E-4.  Without orders or documentary evidence to the contrary, it is presumed his DD Form 214 correctly shows his rank/grade as PFC/E-3.  Therefore, there is an insufficient basis for granting this portion of his request.

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.  awarding him the Army Good Conduct Medal (1st Award) for the period 7 November 1968 through 10 June 1970; and

	b.  adding to item 24 of his DD Form 214 the:

* Army Good Conduct Medal (1st Award)
* Korea Defense Service Medal
* Sharpshooter Marksmanship Qualification Badge with Machinegun Bar

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 the correction of his DD Form 214 to show his rank/grade as SP4/E-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)                                         AR20100029788



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ABCMR Record of Proceedings (cont)                                         AR20100029788



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