IN THE CASE OF:	  

		BOARD DATE:	  30 August 2011

		DOCKET NUMBER:  AR20110004110


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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE:

1.  Counsel requests, in effect, correction of the applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) to show award of the Legion of Merit (LOM) and his foreign service in Panama during the period
19 December 1989 through 15 January 1990.  

2.  Counsel states, in effect, that the applicant's LOM was approved after he retired and the orders were not available at the time he retired.

3.  Counsel provides:

* the applicant's DD Form 214 (with continuation page)
* Permanent Orders 364-02, issued by Headquarters, 1st Special Forces Operational Detachment - Delta (Airborne), Fort Bragg, NC, dated
30 December 2001
* the applicant's LOM award certificate
* a Memorandum For Record (MFR), subject:  Verification of Military Deployment Dates for (applicant's name and social security number), dated 1 March 2010
* 
Permanent Orders 03-108, issued by Headquarters, Joint Special Operations Task Force, Fort Bragg, dated 7 March 1990
* the applicant's DA Form 2-1 (Personnel Qualification Record - Part II)
* the applicant's Enlisted Record Brief (ERB), dated 22 August 2001

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 enlisted in the Regular Army on 8 September 1976.  He completed training and he was awarded military occupational specialty (MOS) 62F (Crane Operator).  After promotion into the NCO ranks, he later reclassified into MOSs 11B (Infantryman), 18C (Special Forces Engineer Sergeant), and 18Z (Special Forces Senior Sergeant).

3.  On 31 October 2001, he was retired by reason of sufficient service for retirement.  He completed 25 years, 1 month, and 23 days of creditable active service.  The highest rank/grade he attained while serving on active duty was sergeant major (SGM)/E-9.  His DD Form 214 shows in:

* Item 12 (Foreign Service) the entry "0000  00  00" indicating no foreign service during the period covered by the DD Form 214
* Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) does not show award of the LOM
* Item 18 (Remarks) does not show he deployed to Panama; however, it does contain the entry "Service in Southwest Asia from 19910216 - 19910402," which equated to 1 month and 18 days

4.  Permanent Orders 364-02, dated 30 December 2001, awarded him the LOM for exceptionally meritorious service during the period 1 December 1991 to
30 November 2001 [sic].

5.  Item 5 (Oversea Service) of the applicant's DA Form 2-1 does not show any foreign service other than his service in Southwest Asia from 16 February 1991 through 2 April 1991.

6.  Counsel provides an MFR, dated 1 March 2010 that documents the applicant's deployment to Panama during the period 19 December 1989 through 15 January 1990, which equates to 28 days of foreign service.

7.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  Chapter 2 contains guidance on the preparation of the DD Form 214.  Paragraph 2-4 states, in pertinent part, that for:

	a.  Item 12f, enter the total amount of foreign service completed during the period of service covered by the DD Form 214.

	b.  Item 18, for active duty Soldiers deployed with his or her unit during their continuous period of active service, enter the statement "Service in (Name of Country Deployed) from YYYYMMDD - YYYYMMDD (inclusive)."

DISCUSSION AND CONCLUSIONS:

1.  Permanent orders awarded the applicant the LOM.  Therefore, he is entitled to correction of his DD Form 214 to show this award.

2.  The evidence of record shows he deployed to Panama during the period 19 December 1989 through 15 January 1990 and Saudi Arabia during the period 16 February 1991 through 2 April 1991, for a total of 2 months and 16 days.  These deployments are not reflected in item 12f, and his deployment to Panama is not reflected in item 18.  Therefore, he is entitled to correction of his DD Form 214 to properly account for this foreign service.

BOARD VOTE:

____X___  ___X____  ____X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant a recommendation for 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 replacing it with the entry "0000  02  16";

	b.  adding to item 13 of his DD Form 214 the Legion of Merit; and

	c.  adding to item 18 of his DD Form 214 the entry "Service in Panama from 19891219 - 19900115."



      ____________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)                                         AR20100014579



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ABCMR Record of Proceedings (cont)                                         AR20110004110



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